Public Bill Committee

[Mr. Eric Martlew in the Chair]

Clause 21 ordered to stand part of the Bill.

Clause 22

Establishment

Question proposed, That the clause stand part of the Bill.

Anne McIntosh: May I welcome you to the Chair, Mr. Martlew? It is a pleasure to serve again under your chairmanship.
The biggest change under clause 22 is the change of status of regional flood and coastal committees from advisory to consultative.

Eric Martlew: Will you speak up a little?

Anne McIntosh: Indeed.
Will the Minister justify the impact that the change to the regional flood and coastal committees status would have in each region? Under the clause, what direction would potentially be given by the Environment Agency to local communities? Will the Minister assure us that, through subsection (2), the Government are not seeking to overrule either local communities or the role of the Environment Agency? We are putting down a marker to show that we are concerned by the change in status of the regional flood and coastal committees. Is the Minister minded to lay before the House the regulations that he proposes in subsection (2), so that we might be able to debate them in the usual way?

Martin Horwood: It is a pleasure to serve under your chairmanship again, Mr. Martlew.
I want the Minister to address two issues in the clause. One is a general concern that what people agree is a valuable route to local democratic involvement in the flood risk management process may be diminished by the arrangements for regional flood and coastal committees. In the NHS, the parlance now is about expert patients. In many fields, it is recognised that the people who actually experience a problem may have insight that even the best academics and professionals sometimes cannot impart. It is valuable to have a route for local people to have a formal role in the flood risk management process. Until now, regional flood defence committees have been one such routeI have met local councillors who have expert knowledge, even though they may not have the professional qualifications of a hydrologist with a complex mapping system at their disposal. Computer models do not know everything and such committees have an important role.
I would like to hear from the Minister a clear expression of how the regional flood and coastal committees will fit between the national oversight role of the Environment Agency and the new lead local responsibility of the local authorities. Ultimately, I am asking what the Government see as the purpose of these new committees. In a sense that is not clearly defined on the face of the Bill; we are left to infer it.
The second specific concern is over the subsection of this clause that gives the Secretary of State power to establish the regions in which these committees are based. We are all familiar with Government regions, some of which are not appropriate at all, certainly not for something of this scale. The hon. Members for Tewkesbury and for Stroud and I labour within the south-west Government region, which places Tewkesbury in the same region as somewhere it is as close to as Scotlandthe Isles of Scilly. That is a crazy scale of region; I hope that is not what is envisaged for these regional flood and coastal committees.
Organisations involved with the Blueprint for Water campaign have suggested that the natural regions for regional flood and coastal committees should be based on water catchment areas. That seems to be a natural and very sensible thing to do and one which would reinforce the thrust of the remarks that I have been making since the beginning of the Committee stage.

Andrew Turner: I am interested in the hon. Gentlemans proposal. May I find out whether he is in favour of the Severn, including that part which is in Wales, being in one unit?

Martin Horwood: The hon. Gentleman may have got the better of me. I am not absolutely sure where I would draw the boundary based on water catchment, and I have not really sat down with a map and thought that through. The Severn vale seems a logical area, but I am not sure whether that would include the Wye. I would leave that up to people more expert than me. The thrust is, again, that we should wherever possible try to work with nature and look at natural landscapes. The obvious regional designation in this case would be water catchment areas and water basins. It would be very welcome if the Minister committed to that now. If he does not find that possible, will he at least say that he would treat that suggestion sympathetically?

Huw Irranca-Davies: Some good issues have been raised. Let me deal with the issue of the boundaries and that of Wales.
The boundaries of the regional flood defence committees were fixed under the Environment Act 1995. They reflected the boundaries that had existed previously under the National Rivers Authority and, before that, the water authorities. On the matters under discussion and the hon. Gentlemans point about catchment areas, there is absolutely no benefit in continuing to fix the boundaries rigidly from the centre. Committee areas would need to take account of a range of factors, including the natural factors relating to river catchment areas and coastal erosion, the size and scale that is feasible and practical for committees to work on, and administrative boundaries. That approach would be in line with the Environment Agencys current advisory committees dealing with environmental protection and fisheries, the areas of which are determined by the Environment Agency under the Environment Act 1995.
The hon. Gentleman raised the issue of whether there should be one single committee that is wholly and mainly for Wales. Currently, there is one flood defence committee on Wales, and the Environment Act 1995 provides that in relation to the other statutory committees. One of the committee regions consists wholly or mostly of Wales. However, we do not see a need to require that there is only a single committee for Wales. For example, it may be sensible to have two or more committees that cover the whole of Wales between them. We need to retain the flexibility for now and the future.
On the hon. Gentlemans question about the role of local people, we will continue to make sure that there is a local role through the RFCCs. They will continue to have local authority membership, which we can perhaps talk more about when we come to the various amendments and the subsequent clause. In schedule 2, an additional provision for local authorities scrutiny increases the scope for public participation.
The hon. Member for Vale of York raised the issue of the change in executive status of regional flood defence committeesI am sure that we will return to that too. The current requirement for the Environment Agency to carry out its flood defence functions through regional flood defence committees creates blurred responsibility between the agency and those committees. It is a fuzzy edge. It also creates potential conflict when it comes to the allocation of funding by the EA and the achievement of Government targets. That arrangement was appropriate when committees raised the majority of flood defence funding through the local levy. However, that has not been the case since 2004, when a system of direct grant from central Government to the agency was introduced. Therefore, the Bill aims to bring the law into line with the present and the intended funding arrangements. However, it also brings matters more into line with the Environment Agencys existing consultative committees, which are entirely advisory, although the regional flood and coastal committees will have decision-making powers relating to local funds.
I hope that that is a helpful explanation.

Laurence Robertson: I was not sure of the answer to a question asked by the hon. Member for Cheltenham, and I am not sure that the Minister has quite answered it. He said that we will return to the issue of the membership of regional flood and coastal committees, but I am unclear about the actual role of the committees, and how they sit between Environment Agency strategy and the lead local authority strategy. What exactly will they do?

Huw Irranca-Davies: The interface between the Environment Agency, the regional flood and coastal committees and local authorities is key. As is described in the Bill, the RFCC is an advisory committee, but it also provides peer support and advice. There is an interface between the organisations, but the RFCC will be on an advisory, rather than executive, footing.

Anne McIntosh: That is the key point, which the Minister did not address. Will he now tell the Committee why the Government have changed and possibly downgraded the role of the regional flood and coastal committees, unless he feels that it is more appropriate to address that under clause 23?

Huw Irranca-Davies: I suspect that we might come back to it, but I have already stated why that is. The Bill brings the position into line with the changes in funding since 2004. At one time these regional committees raised the majority of funding themselves. They do not do that any longer. The Bill aims to bring the legislative vehicle into line with the funding vehicles that are there now and are anticipated in future. We may well return to this matter, but that is the clear rationale behind it.
I did not entirely understand the issue that was raised with regard to subsection (2). That provides the power for the Minister to make regulations to make transitional provision for the move from regional flood defence committees to regional flood and coastal committees. It also allows regulations for the process by which the EA divides countries into various regions. It is fairly straightforward. I suspect we might return to the matter, but the rationale behind the change in status is to reflect the current funding commitments, which have changed since the historic basis.

Anne McIntosh: To help the Minister, we are querying why he needs to make these regulations. He cannot have it both ways. Does the clause serve the purpose of putting into place the consequence of changes? Personally, I disapproved of those. The way in which the previous regional flood defence committees raised money was much better. They were locally accountable, and the fact it is being centralised is regrettable. I do not quite know what the Minister is hoping to achieve through these regulations. What is the purpose of the transitional provision? Is it there because we are replacing the previous committees with new committees? He will detect from Committee members line of questioning that we are not clear what purpose the clause serves.

Huw Irranca-Davies: The clause creates a new vehicle. Based on the historic precedent of the previous committees, it gives them a different remit. It puts them on a structure that reflects the current funding arrangements. I appreciate that the hon. Lady preferred not to have central funding, but there are national strategic aims that need to be delivered. We cannot do that on a purely local or regional basis. Based on the evidence, which has increased over the years, imperatives show where we need to make strategic decisions and where that also requires an interface with local areas. If we pull back and do not have such grant funding, we have the potential for one area to make a decision based on its allocated funding that may have a detrimental effect on an area downstream.
Pitt was absolutely clear on the issue in terms of risk management. We need the strategic overview and the local aspect as well. That is what we are trying to do. We need subsection (2) because the detail of how to proceed is not set out on the face of the Bill. With regard to the transition, we need practical rules to make clear how to move from where we are now. That is what subsection (2) is all about.

Question put and agreed to.

Clause 22 accordingly ordered to stand part of the Bill.

Eric Martlew: There is a small typographical error on the amendment paper relating to amendment 156. It should read clause 23, not clause 24.

Clause 23

Consultation and consent

John Grogan: I beg to move amendment 156, in clause 23, page 14, line 18, at end insert
(2) The Agency may not implement the regional programme without the consent of the Regional Flood and Coastal Committee for the region concerned..

Eric Martlew: With this it will be convenient to discuss clause stand part.

John Grogan: I listened to every word that all three Front-Bench spokesmen have said, and the words local democracy and localism came up a lot. The amendment is infused with the spirit of localism, local democracy and the ancient liberties of our land. When I talk about local democracy, I do not talk about it in the way that some have talked about it in recent years, perhaps most notably my right hon. Friend the Member for Salford (Hazel Blears). They speak about focus groups and consultative panels that keep going until they provide the right answer to whichever arm of Whitehall is consulting. I mean elected local bodies making decisions on local issues.
The regional flood defence committees are one of the little-known marvels of our system of Government. They have brought local and central Government into partnership over the years. There are 11 of them at present. The chairman is appointed by the Secretary of State, and more than half the members are local government members. We will consider the composition of the committees in future amendments.
At present, the committees have the role of approving Environment Agency expenditure in a particular region. It is a historic role. The clause changes it to an advisory role: the committee will become an advisory body like other bodies that advise the Environment Agency. I think they should continue to have the role of approving the regional flood plan of the Environment Agency. It is a good check.
The Minister says that the funding system has changed. It is true that it changed marginally in about 2004. The central grant previously went to local councils, which then passed it on in a levy to the regional flood defence committees. It was always central Government money, but it was routed through the councils. I do not think that it is game, set and match to diminish the role of the committees.
One of the great joys of my life is being a vice-president of the Association of Drainage Authoritiesa title I hold as dear as my membership of Yorkshire county cricket club or my chairmanship of the all-party group on beer. The associations members are experts, and they often sit on these committees. They said that if the powers of the regional flood and coastal committees, as they will become, are diminished and the committees are made consultative bodies only, they will not have councillors of the same calibre wanting to give up their time.
My neighbour, the hon. Member for Vale of York, will know Councillor Peter Sowray, who gives up a great deal of his time to work on the Yorkshire regional flood defence committee. He does that because it is a job with meaning and purpose. He and his colleagues, whether they are councillors or not, can scrutinise the Environment Agency. I believe that the flood plan for Yorkshire is better for the fact that it is scrutinised by the committee that ultimately has to sanction it.
There is no evidence anywhere up and down the land that regional flood defence committees behave irresponsibly, turn down Environment Agency plans carte blanche or cause trouble for the sake of it. There is no evidence at all. The system works, and if it aint broke, dont fix it. It would be much better to leave the committees with an executive role, not just over the levy, which is raised locally, but also over the regional flood programme of the Environment Agency.
It comes down to this: when the day comes that I am no longer a Member of Parliament[Interruption.] That day will come, sooner or later. I might be looking for a job, and perhaps a Minister of whatever colour might decide to make me the chairman of the Yorkshire regional flood and coastal committee, which would be the true honour of my life. [Interruption.] Yes, it would be a true honour. I am too old to open the batting for Yorkshire, so I have to put my aspirations elsewhere.
If I were meeting the regional official of the Environment Agency, I would be treated differently depending on whether my committee and I had to approve the agencys budget, or just had to be consulted. If it was a question of my being consulted, they would give me tea and biscuits but they would not treat the committee in the same way. It is only human nature. If one has to get approval from a body, one treats it with more respect. That is one of the great hidden gems of our democracy. We sometimes wonder how we can make the health service more responsive at a local level. It could learn a little from the success of the regional flood defence committees.
I urge the Committee to keep the executive role of the flood and coastal defence committees, give councillors and the other people who serve on them a proper job of work, and keep the Environment Agency responsible to a locally accountable body. When it comes to deciding on flood management and expenditure in Yorkshire, I would prefer that the final word went to the men and women of the white rose county who sat on the committee rather than the men and women from Whitehall.

Eric Martlew: I remind hon. Members that I am taking clause stand part as well.

Anne McIntosh: I congratulate my hon. neighbour on his eloquence; I could not have expressed it better myself. The white rose league is exemplified by the co-operation on the Committee. We may be few in number on the Committee, but I hope that those who bat for the white rose county will punch above our weight. Before we take on that battle, I do not know whether there any Lancashire representatives here. I support the hon. Gentleman in his quest to have amendment 156 adopted. I have more difficulties with amendment 157, but I think I know where he is coming from. Perhaps the Minister will expand on that when he makes his remarks.
I should like to join the hon. Gentleman in paying a huge tribute to County Councillor Peter Sowray, who I have the honour to represent in this place, and to compliment him on the sterling work that he and others do on the regional flood defence committees.
I do not understand what the Minister and the Department hope to achieve with clause 23. In addressing some remarks on the content of the clause in the stand part debate, should the hon. Member for Selby fail in moving his amendment, I should like to associate myself with the Association of Drainage Authorities, which strongly disagrees with the move to alter the status of the regional flood and coastal committees from an executive to an advisory role. I do not condone what the Government did in 2004-05. I spent five years of my life campaigning to get the Cod beck, which floods frequently, enmained. I did not do that because it would become the responsibility of the Environment Agency but because I thought that it would follow the money, which was then with the Environment Agency and would have been disbursed by the regional flood defence committee and the Environment Agency together. No sooner had I succeeded in my campaign in 2005 to have Cod beck enmained, than the Government changed the system and moved the decision to a central body. I hope that the Minister will take this opportunity to apologise and go back to the system as was, which is what the hon. Gentleman is trying to do with his amendments.
The Ministers own Department draft and floodwater management consultation stated that the rural flood and coastal defence committees
ensure local democratic input into the decision making process.
Therefore, altering their role to an advisory one would diminish their influence on the process. It goes on to say that the committees have already undergone major amalgamation from the previous local flood defence committees, and that the firm view of the Association of Drainage Authorities is that a further reduction in status is likely to undermine the committees ability to act on their current key strengths: their ability to raise money and to represent the local communities they serve. The Governments proposed changes are also likely to deter local authority councillors and others from joining the committees if they are merely advisory. The likes of County Councillor Peter Sowray and his colleagues throughout the country will not see any purpose in or be attracted to serving on those committees.
I want to link my comments to the levying powers, and to echo the comments by the Association of Drainage Authorities that the regional flood and coastal committees must retain their executive powers and the opportunity to decide where the levy funding and the internal drainage board precept funding to the Environment Agency should be spent under the clause. Only thereby can we meet local democratic accountability in prioritising funds and giving local communities the confidence of knowing that the money they raise is being spent and accounted for under local scrutiny. The funding should reflect local priorities, not be part of a national pot that the Government can requisition as they go along. That has been the tendency since 2005, and the fact that Cod beck has not received any funding, to my personal chagrin, shows that that is the case.
The long-term certainty of finance is essential to sound water level and flood risk management. Water level management is a daily job, requiring regular action that must be planned well in advance. In contrast, flood-risk mechanisms may be tested infrequently, but must meet the standard demanded of them on those critical occasions. Both activities transcend political and spending periods as set out by the Government. The mechanisms to which I referredthe special levy and the way in which the agricultural drainage rate through which the internal drainage boards raise their moneymay seem complex, but they have been proved over time to work. They ensure democratic accountability and scrutiny and, more important, they ensure the appropriate degree of financial security for internal drainage boards.
I associate myself with the comments of my distinguished neighbour, the hon. Member for Selby. I am sure that there will always be a place for him here or as a chairman of the new committees that he so desires. I draw the Ministers attention to my comments about the levy-making powers, and I hope that he will exercise his powers under clause 23, particularly subsections (2) and (3), with great circumspection. I also hope that he will be minded to accept his hon. Friends amendment to subsection (1)(a) and (b). I associate myself with the hon. Gentlemans comments and particularly with amendment 156, but we would like further clarification of amendment 157.

Martin Horwood: I will not take much of the Committees time on this, but it might be worth reflecting on why acts of God seem to have affected great cricketing counties such as Yorkshire and Gloucestershire so much. Perhaps the explanation is that God is from Lancashire.
The amendment is welcome, and similar in intent to our earlier amendment 95 and new clause 23. Liberal Democrats could trace the thinking behind it back to John Stuart Mills On Liberty, and the basic idea that even public services and the exercise of authority are not only better theoretically for a bit of scrutiny, democracy and openness, but produce a better result. That has been a theme in many of our proposals for decentralisation and democratic scrutiny in the exercise of all sorts of authority.
The Government have a slight habit of substituting the mantra of consultation for proper democratic involvement. Anyone who has been involved in regional spatial strategies, and has been through the grinding five years of consultation, which produced almost no impact whatever on the final document as I see it, would be wary of that substitution of consultation for proper involvement. It would be a regrettable end to the noble history of regional flood defence committees if their role were diminished in that way. The amendment would, effectively, give them a right of veto over the implementation of EA flood risk management in their particular regions. That would concentrate minds considerably and lead to the improvement of the works planned. The Ministers remarks, which tried to clarify the new role of the regional flood committees as defined in the Bill, did not really satisfy. They seem to be left with a purely consultative role with some residual powers of levy. That would be a diminished role; we want to see a role that would be fit for the hon. Member for Selby to chair at regional level in Yorkshirethat would be a fine end.

Huw Irranca-Davies: I am pleased to respond to that. However, before I turn to the amendment, the hon. Member for Vale of York asked me to apologise. I simply will not apologise for a system that, with grant in aid and local levies, has now delivered double the spending; has given a real strategic national evidence-based overview to flood and coastal erosion management; and, by March 2011, will have allowed us to deliver additional better protection to 160,000 homes. I cannot apologise for that. It is important to make centrally funded decisions based on the best available evidence, but tying that into local input is equally critical; that has been a theme of this.
To refer back to why we are making these changes, hon. Members may not recall that prior to 2004 there was great criticism by several independent reviews throughout the late 1990s. Those identified a lack of strategic planning, poor value for money and a system that was dogged by bureaucracy. So we have not arrived here by accident. I do recognise the role of these committees and I will clarify that in a moment. That strategic overview is also important. Let us not pretend, however, that prior to 2004 everything was hunky-dory, because independent review after independent review showed that it was not. We do not want to return there.
The clause would require the Environment Agency to consult each and every regional flood and coastal committee about how it, as the EA, proposes to exercise its flood and coastal erosion risk management functions within that region. The EA has to go out there and consult on every proposal. It will be required to take into account any representation that the committee makes whether or not it is in response to a consultation. If the committee that my hon. Friend the Member for Selby heads decides, We have picked up on something that they are not consulting on. We want to tell them that it is wrong or it is right, the EA will have to take account of that regardless of whether it is in the consultation. The clause provides for the committees new largely consultative role covering both flood andof course, the change within thiscoastal erosion risk management.
The clause also requires the EA to obtain the consent of the relevant committee before it may issue local levies. Local levy raising and local input to add value to the whole process are key. We have repeatedly said that as a Government. The provision, therefore, leaves the decision-making power regarding the local levy in the hands of people such as my hon. Friend chairing the regional flood and coastal committee, reflecting the present arrangements with the regional flood defence committees. It also requires the EA to obtain the consent of the committee before spending revenue under section 118 of the Water Resources Act 1991, which includes not just the local levy, but other local fundsgeneral and special drainage charges and contribution from IDBs. IDBs are critical in this matter, with their enhanced role. We want to ensure that regional flood and coastal committees have the decision-making power over how locally raised funds are used.
It is entirely plausible that there will be local influence over the Environment Agencys regional programmes through the local levy and the contributions to EA costs, through scrutiny and through challenge. I expect that to happen. I rebuff the idea that the committees are toothless. They will, and should, hold to account and challenge as part of an open and transparent system. They should also be able to work co-operatively and add value to what is being done. We have to have the national and strategic elements, but we will also have the added value that only local input can bring.
We cannot allow, and I am not willing to allow, RFCCs to overrule the EAs direct accountability to Ministers. The RFCCs will not sit at the desk opposite me and account for their actions or mis-actions. That will be done by the EA, which is accountable not only to Ministers, but to Parliament.
The hon. Member for Vale of York raised the issue of RFCCs having powers over local levies. The powers for RFCCs to approve levies and the spending of levy money are set out in clause 23(2) and (3).
I understand the spirit behind the amendment. It would introduce a requirement for the EA to seek the consent of regional flood and coastal committees before it implemented its regional programmes. We discussed a similar point last week in relation to local strategies. As hon. Members know, the Government could not have made it clearer that we recognise the important role that RFCCs will play at the regional level. In line with that, clause 23 places a duty on the EA to consult the committees about how it proposes to carry out its flood and coastal erosion management activities in their areas. The agency must take account of any representations made by the committees. That means that it will have to follow the recommendations of the committees, unless it has reasonable grounds to do otherwise. It will have to justify those grounds.
My hon. Friend the Member for Selby is right to ask for examples of that being a problem in the past. I would be hard pressed to find examples because of the co-operative relationship. Both the EA and the committees try to do the right thing on the ground. To extend the logic, if a committee challenges something good and early, the EA will have to work with it. If the EA will not do what the committee says, it will have to say transparently why it will not do so. Ultimately, the EA will be sitting in my office if my hon. Friend, in his future life as the chair of a committee, says to me, What on earth is the EA doing in my region? It is doing brilliantly in 98 per cent. of the country, but in my patch it is not even listening to us. It has given reasons that are completely mad. That would be an issue that I would be concerned with.
Clause 23 requires consent to be obtained for any local levy. The ultimate responsibility for allocating funding on a national basis must rest with the Environment Agency in England and with Welsh Ministers in Wales, if it is to be allocated systematically and equitably. I know my hon. Friend will understand that. There is a real issue of equitable distribution of funding and social justice. It is not just a matter of looking at the evidence and deciding what sort of defence is appropriate in each place and what strategies will be adopted from region to region. We must ensure that all the funding is not allocated to areas that have greater powers of persuasion or more money to prime the process and assist it. There is a real issue of social justice. That is why the national approach is so important.
The committees formal approval role will mean that it has a power of veto over programmes. I hope that it will never come to that. I will give my hon. Friend the corollary of his argument: I cannot see it ever coming to that, because if it did, there would be somebody sitting with the Minister saying, What on earth has gone wrong here? The proposal would blur responsibility and risk causing a stalematea delayin bringing forward measures that are so important to people and to businesses. It could also hinder the Environment Agency in exercising a national overview of all forms of flood and coastal erosion risk, because the committees can only consider the risk within their own areas and region.
The Select Committee on Environment, Food and Rural Affairs, of which the hon. Lady is a member, was clear on that. It agreed with the proposed approach and stated in recommendation 17:
The Bill should require decision making bodies to explain how they have taken into account any advice from regional advisory bodies, or their reasons for rejecting it.
That has been enshrined in the Bill. However, let me acknowledge that I can see where my hon. Friend is coming from and that there is real tension betweenthis is at the heart of the matterenabling local views to influence the Environment Agency works programme, delivering the strategic national aims that I am talking about and achieving best value for money.
In the past, when RFDCs controlled regional spending, as I have said, there were many partsnot every partwhere there were underspends, and there were many examples of poor value for money. It is not me saying that; it was in report after report. Under the EAs current national programme, which was criticised by the hon. Lady and from which I simply will not walk away, we achieved far greater value for money for the taxpayer from the funding. Although I recognise the passion with which she has spoken and with which my hon. Friend has moved the amendment, I do not have a solution to hand to what he is proposing. I cannot simply walk away from the national strategic overview. However, if we can, I am keen to try to find a way forward that effectively reflects local priorities without putting the improvements I have referred to at risk. I am happy to explore the possibilities of that with both the Environment Agency and my hon. Friend.
Finally, on a minor technical issue, my hon. Friends amendment does not accurately reflect the situation of the Welsh Assembly Government within Wales. I am happy to explore the matter further as long as he is willing to consider the context of the debate that we have had. I do not want to sacrifice the gains that we have made from having that balance between the national strategic and the local.

John Grogan: I thank the Minister for his reply. I am going to press the amendment to a vote for four reasons, which I shall explain briefly. First, the Minister mentioned equity and equitable funding. The argument of centralisers throughout the ages is that the plans of a central body cannot be disturbed in any way by local circumstances because doing so would spoil the beauty of the plan.
Secondly, on the meetings in his office and the chair of the regional flood defence committee being at odds with the Environment Agency, that is precisely what I want to avoid. Those sorts of things should be sorted out in the region, because the Minister has far too many things to do to get himself involved with them. If the regional flood defence committee has to approve the plan, that is precisely what will happen.
Thirdly, that element of regional accountability means that there will be more value for money. Fourthly, I think that we all feel that there is no point in delaying the issue until Report. The Minister is a very busy man who has plenty of things to do, and there is no need for him to have meetings with me and the Environment Agency. If the Committee votes for the measure, we will all feel better for it in the morning.

Question put, That the amendment be made.

Sitting suspended for a Division in the House.

On resuming

The Committee divided: Ayes 8, Noes 7.

Question accordingly agreed to.

Amendment 156 agreed to.

Clause 23, as amended, ordered to stand part of the Bill.

Clause 24

Membership

Martin Horwood: I beg to move amendment 108, in clause 24, page 14, line 29, after selection, insert , election.

Eric Martlew: With this it will be convenient to discuss the following: amendment 109, in clause 24, page 14, line 30, after appoint, insert or elect.

To enhance democracy.
Amendment 157, in clause 24, page 14, line 33, at end insert
(2) In this section the Minister must ensure that
(a) local authorities elect or appoint their own representatives, and
(b) representatives from local authorities form a majority on each committee..
Clause stand part.

Martin Horwood: We should note the historic moment we have just witnessed. My only regret on this rare occurrence of a non-Government amendment being made is that the hon. Member for Stroud was not here to enjoy it, as he is a well-known rebel. We should also record our congratulations to him on becoming a grandfather, which I think is the excuse for his absence, and a very good one.
Amendments 108 and 109 also address the issue of local democratic input in the regional flood and coastal committees, as they seek to make explicit the possibility of either the direct or indirect election of members. As a liberal, I happen to believe that democracy is a healthy and positive thing and that the concentration of power in the hands of the few is dangerous and leads to bad decisions. The possibility that the committees could be either directly or indirectly elected is one that we should certainly incorporate in the Bill.
It is a shame that under the current wording of the clause the only options for membership of the committees appear to be selection or appointment. Given that we are trying explicitly to have democratic input at that level in the process, that is regrettable. The amendments are not prescriptive. They do not say that there must be direct elections or even that local authority members must be elected from within their authority, but it makes it clear that it is at least possible that people can be elected and represent their communities on that basis. Otherwise, there is a risk that the regional flood and coastal committees will simply be creatures of central Government and will lose their distinct value and purpose. I am strongly supportive of amendment 156 for similar reasons.

Jamie Reed: I have a lot of sympathy for the points the hon. Gentleman is making, but is there not a risk that we could end up with local committees designed to address flood issues that, if their membership is composed on a purely elected basis, will pursue populist causes without perhaps the necessary depth of knowledge, understanding and research? I have the greatest sympathy for democratic elections and appointments, but are there not obvious risks? I am trying to reach common ground.

Martin Horwood: I think similar arguments were made against the Great Reform Bill. The point is that the amendment would allow the possibility of appointment and selection and of indirect election whereby members of a local authority would elect from within their number. I think that enough safeguards against demagoguery would remain intact in the clause even if the amendment were made. I would be happy to have at least the possibility of clearer accountability.

Jamie Reed: As flattered as I am to be compared to Robert Peel, that really was not the point I was trying to make. The point I am trying to make is that we want to get things done on the ground and we want to get them done quickly. We all know from our constituencies that certain people have certain issues regarding certain water features, and even with the work we are doing we may not resolve the issues that those communities are facing. I am sympathetic to the points that the hon. Gentleman is making, I am just trying to reach common ground on how we address that problem.

Martin Horwood: I take the serious point that the hon. Gentleman is making. There were strong arguments from my constituents for the flood defence work that was done in Cheltenham at a cost of £23 million and which probably saved hundreds if not thousands of properties from flooding when the floods of 2007 happened. It was very welcome that those flood defences were already in place, even though they did not save everybody. Similar arguments were made that there was a pork barrel approach to flood defence, but we are talking only about the regional flood defence committees. As we have established, they are largely consultative bodies; they have the power to raise levies for specific projects but most of the strategic work would still be in the hands of the Environment Agency and the other flood risk management authorities. I do not think that the hon. Gentlemans fears are likely to be realised and I am happy to support this amendment along with mine.

Anne McIntosh: I offer two congratulations. First, in his absence, to the hon. Member for Stroud on his good news. Secondly, I congratulate the hon. Member for Selby on achieving a pyrrhic victory with his amendment. I am minded to support his amendment 157and I hope that the Committee will do so too. I would like him to clarify what the position of the membership of the internal drainage boards will be in relation to subsection (2)(b). I would also like him to clarify the role of farmers, landowners and parish councillors. It would be very helpful if he could do that when he sums up.
I can see where the hon. Member for Cheltenham is coming from, but we had a good debate on critical infrastructure earlier and we adequately held the Government to account. There will be opportunities later to vote on our new clauses concerning the failure to come up with the proposed register for critical infrastructure, which I understand is part of the Pitt recommendations that the Government admit is still outstanding. The same goes for amendment 107I believe it has been amply covered by the new clauses that we will have the opportunity to vote on later.
The Minister has on previous occasions said that in setting up the membership of the committees he is minded to look at the local authority proposal for catchment area flood management boards. As this is a clause stand part debate, could the Minister confirm that he is minded to look favourably on Select Committee recommendation 17 in paragraph 55 of the substantive report, which makes just such a proposal? The Committee clearly states that the Bill should require decision-making bodies to explain how they have taken into account advice from regional advisory boards. This might be the opportunity to illustrate that the Government are minded to do so in this regard.
Although I am mindful of the restrictions I mentioned earlier, I note that clause 24 allows the Minister to make decisions about the membership of a regional flood and coastal committee, including the number of members, the size of the area covered and the selection of appointment methods. Clause 25 also allows the Minister to direct the Environment Agency on payment. We feel that this is all-embracing. Who will the Minister consult when making those regulations? The clause talks about the proceedings of the committee, but it would be helpful if the Minister could expand on the provisions in that regard.

Martin Horwood: I am slightly puzzled. I realise that the hon. Lady has moved on from amendment 108, but I am not quite clear whether she is now supporting the explicit possibility of electing people to the regional flood and coastal committees. If she is not supporting amendment 108, I would take it that she is, in a sense, supporting the current wording of the Bill, which seems to rule out the election of members of those committees.

Anne McIntosh: I think amendment 157 covers that eventuality and leaves the option open. It should be for the local authorities to decide. The whole thrust of my remarks in this regard is about letting local communities decide what they want to do and about us not being so prescriptive as to write it into the Bill. Given the choice, my preference would be to support amendment 157.

Andrew Turner: I am not quite clear what election means in these circumstanceswhether it is election from the whole world within the area or election from members of one of the committees.

Anne McIntosh: My hon. Friend is at one with me. My preference would be to support amendment 157 on the basis that we should let the locals decide what works best for them in their area. Obviously, democracy is best, but if committee members are to be appointed, it should be for fixed terms, possibly with the ability for them to be renewed for one further term. The Government are being slightly cack-handed, and perhaps a little too prescriptive in what they are trying to do. It is part of the centralising versus local idea, and we would prefer to see more local decision making and less centralisation in the clause.

John Grogan: At the moment, local authority representatives have a majority on the regional flood defence committee. What has made this an issue is that, at the moment, the Bill just gives powers to the Minister to appoint who he or she thinks fit to the regional flood and coastal committees. I was encouraged by what my hon. Friend the Minister said in the scrutiny session when he was asked about this by me and others. He said:
I think that I am correct in stating that those local committees will have the majority of local authority members there.[Official Report, Flood and Water Management Public Bill Committee, 7 January 2010; c. 14.]
I hope the Minister will say explicitly that local authorities will continue to have a majority and the other members will be, as the hon. Lady mentioned, farmers and representatives of internal drainage boards, people who currently are appointed by the Minister to make up the rest of the committee. Of course, the chair of the committee is also appointed by the Minister. Therefore, I hope the Minister can confirm that will still be the case.
Regarding the business of electing or appointing, I am sure that the Minister does not mean to say that in Yorkshire, for example, he would be choosing the majority of local authority councillors. It would not be Whitehalls favourite six or seven councillors. I presume that, as of now, the local councils themselves will be deciding. Not every local council is represented on a regional flood defence committee, so they have to choose between themselves and I think their practice varies on how they do this. Possibly, they have an election between themselves to decide who is going to put forward a representative; or if they are a unitary and there is only one council, it would presumably be an appointment from an individual council. That was what I was trying to tease out through my amendment, and I am hopeful that the Minister can reassure the Committee that it will be pretty well business as usual in terms of appointments to the new committee as it was to the old committees.

Huw Irranca-Davies: Amendments 108 and 109 in the names of the hon. Members for Cheltenham and for Brecon and Radnorshire are intended to ensure that the members of the regional flood and coastal committees can be elected. The current provision in the Bill allows for them to be selected. Let me make it clearthat allows for both election or appointment by local authorities, Ministers, or the Environment Agency. The precise way of doing it is to be decided and will be set out in regulations. There will be further consultation with all relevant persons and authorities before a decision is arrived at. However, as I have said, the current drafting of the provisions will actually deliver what the amendments seek to achieve, which is the ability to have elections, within the phrasing selection. We have taken advice from parliamentary counsel that this is perfectly permitted within the measure, so the amendments are not actually necessary in that context.
My hon. Friend the Member for Selby has tabled amendment 157 which, like amendments 108 and 109, relates to the composition of RFCCs but in a slightly different context. It seeks to ensure that there are local authority elected or appointed representatives to regional flood and coastal committees and that representatives from local authorities form a majority on each committee. Current policy is in line with that. We intend to use the regulation-making power under clause 24 to ensure that local authorities have a majority on the committees. We are clear that this needs to remain the case, at least as long as RFCCs retain the right to raise local levies. We do not disagree with the aim of that proposal.
However, the clause is drafted to allow flexibility on membership and on the selection of members, rules, majorities and quorums so that we have a framework that can be adapted to changing circumstances in the longer term. The precise numbers will not be set by me. The numbers, the composition and means of selectionwhich could be by election or appointment as I have saidare yet to be decided on. We will consider the matter further and will consult before coming to a conclusion on the guidance.

Anne McIntosh: This is a new point that has not been raised. Is the Minister confirming that lead local flood authorities who pay the levy to the regional flood and coastal committee will have the right to be represented, on his reading of the Bill and if we were to adopt amendment 157? It is not entirely clear. Will he ensure that a method for proper representation of the lead local flood authority will be guaranteed?

Huw Irranca-Davies: Well, indeed, and it can be part of the input in the consultation that will lead to the actual regulations. That is what that particular debate needs to have. I have re-emphasised where current policy is and the fact that we intend to use the regulation to make sure there is a majority of local authority members on those committees.
However, I note that the hon. Lady also raised the issue of whether we would be minded to look favourably on local authority flood management boards. We do look favourably on such proposals. There is the flexibility to do so. We do not think legislative provision is needed. Why do we need to be so prescriptive right here, right now? What we need to do is make sure that it can be allowed, so local authorities will be able, under the Bill, to put in place their own arrangements for such joint working.
Although we agree with the aim of amendment 157, we do not consider it appropriate. It would introduce rigid rules now when we need flexibility in future. On that basis, I hope Members will withdraw the amendments.

Martin Horwood: The Minister is obviously a man of his word. If he says that parliamentary counsel gives explicit legal opinion that election is still possible, I see no need for amendments 108 and 109 to be pressed. However, I cannot help thinking this is a triumph of law over the use of English, because selection to me means something very different, but that is not unknown in legal circles and I am not a lawyer so I cannot judge.
I would, however, still be content to vote for amendment 157 to put the matter beyond doubt. I take the point made by the hon. Member for Vale of York that it achieves the same object as my amendments.

John Grogan: I will not push my luck too far. I will accept the Ministers assurances on this occasion[Interruption.] No, I accept his assurances. He has been far more convincing on this amendment than on the previous one.

Martin Horwood: I beg to ask leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Clause 24 ordered to stand part of the Bill.

Clause 25

Money

Question proposed, That the clause stand part of the Bill.

Anne McIntosh: I should be interested to know from which moneys the Minister may direct the Environment Agency to make the specified payments to the regional flood and coastal committee chairmen, or former chairmen. I understand that the agency will be authorised to pay allowances, so things are looking up for the hon. Member for Selby. He obviously knew something that we did not know when he declared his interest.
The Minister has the power to determine the amounts, or maximum amounts, that may be paid under the clause. Will he elaborate on whether that money is paid from his largesse or the Environment Agencys current budget? Will he also elaborate on the nature of the allowances? I hope that he will forgive me for not having had a chance to discover that from the impact assessment. It would be helpful to have some guidance from him.

Laurence Robertson: In addition, under clause 24(a), the Minister will specify the number of members of committees. Will he multiply the figures and let us know how much each committee might cost?

Huw Irranca-Davies: The clause allows the Minister to direct the Environment Agency to make payments to chairs and former chairs of the regional flood and coastal committees. I do not know whether it is right to say chairs or chairmen and chairwomen.

Anne McIntosh: Chairmen, because men embrace women.

Huw Irranca-Davies: There we are. Such payments may be made in relation to remuneration, allowances, pensions and compensation. To give an idea of where we are, we must allow committee chairs to be paid so that committee members can receive allowances to cover their costs. Hon. Members will appreciate that that is reasonable, and it continues the current arrangements under schedule 5 to the Environment Act 1995 in relation to the regional flood defence committees. I shall relate my comments to what currently happens.
The chairs remuneration is set by the Senior Salaries Review Body, which also sets annual increases. The increase for this financial year, for example, was set at 1.5 per cent., and chairs currently receive £17,503 precisely, except in Northumbria where the figure is set at £14,002 precisely. I do not know the reason for the difference, but I suspect that it relates to the number of days per month that are committed. The Environment Agency also sets allowances for travel and meals, financial loss allowances for other members, and financial loss allowances related to the length of the meeting.
I do not have to hand the information about where the funding will come from. Currently, it comes from the established funds that are available to the Environment Agency, but I will write to the hon. Lady clarifying where it will come from.

Question put and agreed to.

Clause 25 accordingly ordered to stand part of the Bill.

Clause 26 ordered to stand part of the Bill.

Clause 27

Sustainable development

Martin Horwood: I beg to move amendment 110, in clause 27, page 15, line 13, leave out from (1) to ; and in line 14.

Eric Martlew: With this it will be convenient to discuss the following:
Amendment 111, in clause 27, page 15, line 35, at end add
(6) In this section sustainable development means development which enables all people throughout the world to satisfy their basic needs and enjoy a better quality of life, without compromising the quality of life of future generations, pursued in an integrated way through a sustainable, innovative and productive economy that delivers high levels of employment; and a just society that promotes social inclusion, sustainable communities and personal wellbeing and will be done in ways that protect and enhance the physical and natural environment, and use resources and energy as efficiently as possible..
Clause stand part.

Martin Horwood: I shall address amendments 110 and 111 together. Only last night in my constituency, I was at an inspiring public meeting, as many of our public meetings concerning the regional spatial strategy are. It was addressed by one Jonathon Porritt, who, as I am sure the Minister is aware, was recently the chairman of the Sustainable Development Commission. He described a process that he called sustainable development abuse. It was the use, particularly by Government agencies and Departments, of the phrase sustainable development to justify almost anything that they cared to do. There is a loophole in the clause that would allow exactly that process in this case.
At present, the Bill allows the Minister to issue guidance not just about how authorities are to discharge their duty in the clause, but about the meaning of sustainable development. I am sure the Minister is a busy man, so we are helpfully pointing out in the amendments that he does not have to do that, because there is already a definition of sustainable development. It has been provided by the Sustainable Development Commission, which was set up by the Government for that very purpose, and which Sir Jonathon chaired.
The definition is the one given, broadly speaking, in amendment 111, which states that
sustainable development means development which enables all people throughout the world to satisfy their basic needs and enjoy a better quality of life, without compromising the quality of life of future generations, pursued in an integrated way through a sustainable, innovative and productive economy that delivers high levels of employment; and a just society that promotes social inclusion, sustainable communities and personal wellbeing and will be done in ways that protect and enhance the physical and natural environment, and use resources and energy as efficiently as possible.
That is a much more comprehensive, detailed and well thought-out definition than some of the ones that I have seen from Departments, mentioning no names except Communities and Local Government.

Roberta Blackman-Woods: I wonder whether this is yet more evidence of the new-found centralising tendency of the Liberal Democrats. The clause as it is currently constructed at least allows some local interpretation of the guidance, whereas the amendment is prescriptive as to exactly what local authorities should do. We should allow the case for localism in interpreting the Ministers guidance.

Martin Horwood: That was a clever debating point from the hon. Lady, but the fact is that the English have been striving for the past 1,000 years or so to centralise the use of terminology on the basis of common understanding about what general terms mean.
The meaning of sustainable development has been abusedSir Jonathon is right about thatby Departments in particular, which have neglected the environmental sustainability element of the meaning of the phrase. It has already been a theme in many of our discussions in the Committee. It is an important theme for the Bill, as the use of flood defences in concert with natural processes and in harmony with the natural environment is something that we need to encourage and reinforce at every possible opportunity. The two amendments would force the use of a definition of sustainable development that respects the environment and the natural processes involved. It has been developed by the very body commissioned by the Government to do the job of defining sustainable development. On that basis, I am sure that the Minister will be supportive.

Anne McIntosh: I would like to make some comments on clause stand part, but before I do let me say that I enjoyed the exchange between the hon. Members for City of Durham and for Cheltenham. On round one, I am minded to support the hon. Member for City of Durham, but the hon. Member for Cheltenham should not be discouraged because he has had one or two positive victories as well.
The Country Land and Business Association has stated that sustainable development is a fairly nebulous concept and could mean whatever the user of the term wants it to mean. It is happy that the Minister is under an obligation to issue guidance on what it will mean in the present context. Perhaps he can let us know what parties will be consulted. However, the CLA goes on to say that because the contents of the guidance is likely to have significant implications, it believesand I think that all of us would wish to support its point of viewthat the guidance could have been made available either at this stage or before Report.

Martin Horwood: I am astonished that the hon. Lady is prepared to reject the Sustainable Development Commissions definition of sustainable development knowing, as I am sure she does, that Government Departments under this Labour Government have, on occasion, produced the most astonishingly vacuous definitions of sustainability and have used them to justify the most unsustainable practices imaginable in housing, economics and local communities. There are many examples of sustainable development abuse, as Jonathon Porritt calls it. I find it astonishing that she is not prepared to support putting that clear definition in the Bill.

Anne McIntosh: I am pleased that the hon. Gentleman has such a good relationship with Jonathon Porritt, who seems to be a voice from the past. There are alternative definitions, which I will put to the Committee, so we do not necessarily have to take this one. One such definition comes from the Royal Commission on Environment and Development, which says that sustainable development is a process of change in which the exploitation of resources, the direction of investments, the orientation of technological development and institutional change are made consistent with future as well as present needs. If we are to have a debate, there are a variety of definitions from which we can choose. As the hon. Member for Brecon and Radnorshire will recall, when we were in the Select Committee, we lamented the fact that no definition of strategy was given.
I should like to ask the Minister to support the comments of the Local Government Flood Forum, which has given the matter some thought. It says that the meaning of sustainable development is clearly defined in Government policyso it would obviously take issue with the hon. Member for Cheltenhamand that it has been used to develop sustainable community strategies. It says that to issue new guidance with a new special flooding definition of sustainable development would be unnecessary. It is particularly concerned about clause 27(2). I have thrown that in the pot as a debating point, because there is confusion about what sustainable development means in this context.

Martin Horwood: As the hon. Lady argues that we should not have logical definitions of sustainable development and a special flooding definition, she should support my amendment because it is designed to ensure that there are not multiple definitions across Governments and that there is only the one supported by the SDC.

Anne McIntosh: I want to hear from the Minister about what definition the Government are using in this regard.

Roberta Blackman-Woods: I want to make a couple of comments on clause stand part. Unlike the hon. Member for Cheltenham, I was pleased to see the inclusion of clause 27 in the Bill, because it is important that authorities are able to think about future sustainability. I pay tribute to the hon. Member for Vale of York for making that point.
The Minister has told the Committee that authorities are already able to refuse planning applications that might in some way conflict with sustainability under PPS25. However, I think a number of us have had particular issues or circumstances in our constituencies relating to that. I am dealing with an issue where an application is being made for development on Durhams flood plain. We are not at all confident that it will be refused under PPS25. Indeed, PPS25 is being used to approve the development because of resilience measures that are being included in the development. However, the nature of the development impacts on the possible sustainability of the whole area because it is being developed inappropriately. I would like some reassurance from the Minister that under clause 27 there will be strong cause for local authorities to be able to refuse development where they think it impacts negatively on the long-term sustainability of the area.

Huw Irranca-Davies: The amendments would remove the requirement for ministerial guidance on sustainable development and would mean that guidance on the meaning and definition of sustainable development would be placed in the Bill. That definition would be fixed in primary legislation for ever and a day, until we revisit it.
The amendment is interesting, and I have sympathy with what the hon. Member for Cheltenham said. He asked whether I would be supportive and I can tell him that I support the intention, not the substance of the amendment. I accept the need for clarity, but the meaning of sustainable development has already been defined in various ways. For example, as many Committee members will know, in the international context, there was the well known Brundtland report, Our Common Futurethe 1987 report of the World Commission on Environment and Development. More recently, in the UK context, there was the Governments 2005 sustainable development strategy, Securing the Future, which includes the definition that is in the amendment.
I think we know where we are, but the problem isI hate to say thisever since the blueprint for growth in the 1960s and the Brundtland report, there has been much work on improving definitions of sustainable development, and I have no doubt that Jonathon Porritt and others will continue to improve those definitions. For example, we can look at definitions from Jacobs on weak sustainabilities and strong sustainabilities.
We already have definitions of sustainable development, but let me just add to those. If hon. Members were looking for a current definition of sustainable development beyond what the hon. Gentleman refers to, DEFRAs website contains pages on sustainable development, including a definition and details on the principles that underpin it. The principles are equally important and include living within environmental means, ensuring a strong, healthy, just society, achieving a sustainable economy, promoting good governance and using sound science responsibly. We all know that the overall goal of sustainable development is to enable people throughout the world to satisfy their basic needs and enjoy a better quality of life without compromising the quality of life of future generations.
Guidance provided by the Minister under section 4 of the Environment Act 1995 and clause 27(2) of the Bill will allow us to be more explicit about what sustainable development means in the context of flood and erosion risk management in England and Wales. Clause 27 requires that ministerial guidance is given to clarify that definition in relation to flood and erosion risk management. We do not need to bang it in the Bill for ever and a day because we might get the definition wrong, or it might move on or be improvedtweaked, refined or made more specificby Jonathon Porritt or whoever else.

Martin Horwood: Will the Minister give way?

Huw Irranca-Davies: If the hon. Gentleman has confidence that the definition he proposes is the definition par excellence and that no Minister would have to return to it over the next few years, I will welcome his intervention.

Martin Horwood: The Minister seems to be presenting this as Jonathon Porritts personal definition, but it is not. It is the definition used by the Sustainable Development Commission. As has been pointed out, it is the official definition of the Government. I believe that it is agreed in the shared framework with the devolved Administrations, so it is also their official definition of sustainable development. Of course it will not be the end of conversation, discussion or debate on the matter.
If the Minister made a commitment to table an amendment that made the definition the same as the wording in the shared framework between the UK Government and the devolved Administrations at any given time, I would consider not pressing amendment 111.

Huw Irranca-Davies: I try to be accommodating as far as I can, but I am not likely to propose such an amendment. My suggestion is that we provide guidance on what we mean by sustainable development. This might well be the definition that we settle on. There will be an ability to alter that in regulations, if necessary, although not necessarily through Jonathon Porritt because, as the hon. Gentleman says, this is not Jonathon Porritts definition. It will be an accepted definition at that time.
The definition might well last for five or 10 years, but my point is that it is not appropriate to fix one definition in primary legislation. We had the same debate during consideration of the Marine and Coastal Access Bill. The approach we took was to put the definition in the underpinning principles rather than in the Bill, for exactly the same reasons. I do not think that the hon. Gentleman is certain that this definition is the be all and end all. On that basis, putting it in the regulations based on guidance will allow us to stay in tune with any developments in the concept of sustainable development and enable Ministers to ensure that the guidance is consistent with other guidance on sustainable development, such as the statutory guidance provided to the Environment Agency under section 4 of the Environment Act 1995.
On the point made by the hon. Member for Vale of York, we do not have a firm date, but we anticipate bringing forward the guidance by autumn this year. In bringing forward any definitions through regulations, I would wish to consult with the public, academics, wildlife groups and others to ensure that we fix on the right definition. We could not do so if we bolted it on to the Bill.

Anne McIntosh: I notice that clause 27(3) lists a number of authorities. Water and sewerage companies are excluded. Would it not be a good idea for them to be included?

Huw Irranca-Davies: I can clarify for the hon. Lady that a similar statutory duty already applies to Ofwat. The principles of sustainable development are embedded in its formulation and in the review of policy that controls the way in which water companies work. She raises an important point to ensure that the provision cuts across all agendas.
I agree with the theory of the amendment, but bolting the definition on to the Bill for ever and a day is not the right method. It is far more appropriate to have fluidity so that we can improve the definition as time goes by. I am addressing a conference on biodiversity, post-2010 targets. I would be remarkably wise if I could fix in time now what we should be doing to improve the environment in that context. The same applies here. We should have flexibility so that we can take this forward over time and evolve. Having said that, the definition the hon. Gentleman has put forward may well be the one that we agree on.

Martin Horwood: That was a kind final comment, but the Ministers argument seems to be against trying to define almost anything. At some time, one has to plump for a definition and put it in the Bill, in policy guidance or wherever. One cannot avoid the temptation to define anything on the grounds that it might change in the future.
I suggested earlier that, if the Minister brought forward an amendment that did not put a definition in the Bill, but said that for the purposes of the Bill, sustainable development meant whatever was the current definition of the shared framework between the UK Government and the devolved Administrationsthat is the phrase used by the Sustainable Development Commission and means the current best definition that the Government havethat would be preferable to allowing Ministers in one particular Department to come up with their own definition. That is precisely the process, as the hon. Member for Vale of York pointed out, although she was not supporting my amendment, that leads to multiple definitions, some of which, I have to say, are vacuous, unsustainable waffle. I am afraid that I have sat through Select Committees with Ministers from various Departments, at various times, giving evidence on what they thought sustainability meant. Some of them produced the most ludicrous and meaningless statements, which were just PR fluff. We have to get serious about sustainability. It has a concrete and serious meaning, which respects economic sustainability, social sustainability andthe most important of the three pillars in a long-term senseenvironmental sustainability. Without environmental sustainability, the other two fall.

Huw Irranca-Davies: If we proceed along the course that the hon. Gentleman suggests, well intended as it is, the ability to go beyond the wisdom of this Committee, or beyond the wisdom of the proposal that he is putting forward, and to seek views before we agree on a definition is stymied. That is the way we should do it: to consult properly on the matter and bring it forward. If we settle on the definition that he has as the best way forward, so be it, but let us not cut that out at the moment, because it will not allow any of those interested parties to contribute to the debate that we are having.

Martin Horwood: The Ministers willingness to spend public money on consultations about things that have already been perfectly and satisfactorily defined is almost endless.

Laurence Robertson: I am not necessarily endorsing the hon. Gentlemans amendment, but clause 3(3) on risk management gives
examples of things that might be done in the course of flood or coastal erosion risk management.
Does he not think that it might be useful, in a similar way, to give some examples of what sustainability might touch upon?

Martin Horwood: The hon. Member makes an interesting point. It might well be good to give examples of sustainability, even if we are reluctant to define it. However, I will conclude. I might need your guidance, Mr Martlew. I would like to press amendment 111 to a vote.

Eric Martlew: When we come to it.

Martin Horwood: I beg to ask leave to withdraw amendment 110.

Amendment, by leave, withdrawn.

Amendments made: 59, in clause 27, page 15, line 32, leave out flood and coastal erosion risk management in England and insert English authorities.
Amendment 60, in clause 27, page 15, line 34, leave out flood and coastal erosion risk management in Wales and insert Welsh authorities.
Amendment 61, in clause 27, page 15, line 35, at end add
(6) For the purposes of subsection (5)
(a) an English authority is
(i) a lead local flood authority, district council or highway authority for an area in England, and
(ii) an internal drainage board for an internal drainage district that is wholly or mainly in England;
(b) a Welsh authority is
(i) a lead local flood authority or highway authority for an area in Wales, and
(ii) an internal drainage board for an internal drainage district that is wholly or mainly in Wales..(Huw Irranca-Davies.)

Amendment proposed: 111, in clause 27, page 15, line 35, at end add
(6) In this section sustainable development means development which enables all people throughout the world to satisfy their basic needs and enjoy a better quality of life, without compromising the quality of life of future generations, pursued in an integrated way through a sustainable, innovative and productive economy that delivers high levels of employment; and a just society that promotes social inclusion, sustainable communities and personal wellbeing and will be done in ways that protect and enhance the physical and natural environment, and use resources and energy as efficiently as possible..(Martin Horwood.)

Question put, That the amendment be made.

The Committee divided: Ayes 2, Noes 8.

Question accordingly negatived.

Clause 27, as amended, ordered to stand part of the Bill.

Clause 28

Power to make further amendments

Question proposed, That the clause stand part of the Bill.

Anne McIntosh: Briefly, the Minister seeks powers to make further amendments. Under schedule 2 he is already making quite extensive amendments to a number of Acts. One that we query in particular relates to section 23(1)(b) of the Land Drainage Act. There are concerns that the amendment that the Government seek will impose a requirement on internal drainage boards and lead local flood authorities to consult with and, effectively, seek consent from the EA. A number of concerns have been expressed about the amendments later in the Bill. What power will the Committee or Parliament have to review them?
The list of Acts to which the clause refers does not include the Marine and Coastal Access Act 2009. I realise that it is a recent Act and the Minister is probably pleased with its content and its passage, but are there no circumstances under which he would envisage a need to amend that? I realise that the Bill has been through a number of drafts and what is now the Marine and Coastal Access Act was probably a Bill at that stage. However, it would be helpful to ensure that the list is as comprehensive as possible. To confirm, does that mean that an affirmative order will have to be laid in the form of a statutory instrument before the amendments will be made? Are there any other omissions as regards Acts that the Minister can think of that we may need to return to?

Martin Horwood: The clause gives the power to amend primary legislation by order on the personal initiative of the Minister of the Crown. Even though that may involve an affirmative resolution of the House, in practice it shifts power from Parliament to the Executive. It is, I am afraid, rather typical of many pieces of legislation that have come before the House in recent years and is wholly unacceptable. It lends extraordinary influence to the personal whim of the Minister and I would like it not to stand part of the Bill.

Huw Irranca-Davies: The clause will give the Secretary of State and Welsh Ministers powers to make consequential amendments through secondary legislation to the existing legislation so as to reflect the changes made through part 1 of the Bill. The sort of Acts that can be amended are the Public Health Act 1936 where relevant to water; the Coast Protection Act 1949; the Highways Act 1980 where relevant to water; the Land Drainage Act 1991; the Water Resources Act 1991; and the Environment Act 1995. To address the question from the hon. Member for Vale of York, the Marine and Coastal Access Act is not relevant to part 1 of the Bill; that is why it is not set out in it.
Many amendments to those Acts are set out in schedule 2 of the Bill. However, it is possible that other amendments might be needed to address inconsistencies between the old framework and the new. It is not reasonably possible to anticipate all such amendments in advance. They could include, for example, amendments to the provisions on powers of entry in the Water Resources Act 1991 so that they are sufficient for the wider activity of risk management as opposed to flood defence. Combined with powers under clause 44, which allows for inconsistencies and errors to be addressed, the clause will enable amendments required prior to consolidation of the existing floods legislation, as recommended by Sir Michael Pitts review.
As the hon. Lady said, the clause could allow for amendments to primary legislation, and I confirm that the affirmative procedure requiring a debate in each House, as well as in the National Assembly for Wales, will apply before the measures come into force. We believe that to be the right approach.

Laurence Robertson: I am grateful for the Ministers confirmation on that point. Normally, however, when a Bill is enacted, it contains a provision which means that the Bill can be amended by order. I find it a little unusual to have a Bill that states that a previous Bill can be changed by order.

Huw Irranca-Davies: As the hon. Gentleman says, I can safely say that this is not without precedent. We cannot reasonably anticipate every eventuality at this moment, but if amendments were necessary we would want to put them in front of both Houses so that they could be properly debated. That is the appropriate way to do it.
I also inform the Committee that it is necessary for the Government to table an amendment to the clause to provide for the fact that some of the authorities affected by the amendments, such as water companies, operate across borders. Clarity is needed in the legislation about when they will be subject to amending regulations.

Eric Martlew: Order. That amendment is not before us today.

Huw Irranca-Davies: I apologise. I will return to that technical issue at a subsequent stage.

Anne McIntosh: I was minded to let the clause stand part, but if the Minister plans to come back at a future date with an amendment, it would perhaps be best to strike the clause from the Bill until we see the new text. I do not think that it is appropriate. The Minister has had every opportunity to bring forward amendments by this stage. Concerns have been expressed to me about the clause, and it might be appropriate to strike it out until we get the amendments.

Huw Irranca-Davies: It is in the hon. Ladys gift to make that decision. As I have said, with your guidance, Mr. Martlew, we will probably return to the matter at a later stage. The amendment has not been tabled. If we bring it forwardit is if we doit will be technical, and we would not bring it forward now but on Report. I will comply with your strictures, Mr. Martlew and not go into detail about what it will be.

Andrew Turner: Perhaps this question would have come better before the comments by my hon. Friend the Member for Vale of York. I am concerned about how many times we have done this sort of thing and allowed ourselves to be bamboozlednot quite bamboozled, but put in the position of agreeing something that has not been right. I am concerned about the number of occasions on which we have agreed to put things into the Bill to allow Ministers to amend the construction of previous legislation.

Huw Irranca-Davies: The clause is in front of us, and hon. Members are free to vote for or against it as they see fit. Should we bring the amendment forward, it would be purely a technical issue on devolution.

Question put and agreed to.

Clause 28 accordingly ordered to stand part of the Bill.

Clause 29

Restructuring

Martin Horwood: I beg to move amendment 138, in clause 29, page 16, line 23, after consult, leave out to end of subsection (4) and insert
(a) the authorities that would be affected by it,
(b) the public..
The amendment proposes another piece of transparency that we would like to add to the Bill, which I am sure will be welcome. It would simply ensure that key decisions that have major implications for local people are not taken in secret. Under the clause, changes in responsibility are set down by order, but the shocking truth about orders in this placeit might shock the hon. Member for Norwich, North, who is new to these thingsis that once in a while we are presented with orders that have already taken effect. We are effectively presented with a fait accompli. We then face the choice, in a Committee, of rubber-stamping what has already been done or disrupting procedures that are already taking place. It is an unsatisfactory process.
The amendment is designed to ensure that the Government are never tempted to reassign responsibilities behind closed doors and present them to Parliament subsequently, because there might be an obvious temptation to do so. The reassignment of those responsibilities could be important and could have implications for local people, and that is not something I would like to happen behind closed doors.

Anne McIntosh: I do not see the need for amendment 138 or believe that it would add anything of substance to the Bill. I would like to make some comments on the Bills current drafting. It is welcome that the Minister may add new bodies and that the Secretary of State can step in to reassign responsibilities under certain defined conditions, but I regret that it is not clear how that process will be instigated or what role the lead local flood authority, the district councils and the internal drainage boards would have in possibly instigating such a measure.
Would it not make sense for the Minister to explain the reasons for looking into restructuring flood provision and state them publicly so that we are better advised? Perhaps he would be minded to add to the clause something along the following lines: Where all lead local flood authorities in an area request that the Minister consider reassigning responsibilities within that area, the Minister must respond with reasons.
Perhaps the Minister will expand on the authorities that he believes will be covered. With regard to an order under subsection (2), the reasons should be stated. It is not entirely clear whether devolution has automatically been resolved under subsection (6)? Who will make the order, particularly with regard to trans-border matters?

Huw Irranca-Davies: The clause provides Ministers with powers to make orders to reassign the flood and coastal erosion risk management responsibilities of lead local flood authorities, district councils and internal drainage boards. That will allow the reallocation of powers between authorities and amendments to the definition of risk management authorities. It will also allow for additional authorities to be included as risk management authorities.
The clause is probably not as clear as we would like it to be, with regard to whether additional bodies can be included as risk management authorities, or whether functions could be transferred to risk management authorities such as water companies. We intend to clarify that on Report.
Returning to the clause as drafted, the powers provide an additional degree of flexibility that will allow the framework of responsibilities to evolve over time, and the powers were recommended by the Environment, Food and Rural Affairs Committee during pre-legislative scrutiny. Although we do not have any plans to use them in the short term, the powers will be important in allowing change in circumstances to be addressed.
We are considering whether subsection (6) accurately reflects the devolution settlement. If an intended reassignment of responsibility was from or to a cross-border risk management authority or other body, it is not currently clear where the ministerial responsibility lies for making such an order. This provision may, therefore, need to be more precise about when an order should be made by Welsh Ministers and when it should be made by the Secretary of State. If further provision is required to clarify that important technical issue, we will bring forward an amendment on Report.
Amendment 138 would require public consultation on any changes made by order under clause 29. In its current form, the clause requires flood risk authorities to be consulted on any changes. The Government are committed to the code of practice and consultation, and the Welsh Assembly Government endorse the same principles and would take the same approach. Having heard what the hon. Member for Cheltenham said, and having looked at the provision in the light of his amendment, I will not waste the Committees time further, because the amendment probably is worth while. Therefore, if the hon. Gentleman will let me take away the amendment to ensure that the drafting is correct, I am more than happy to come back with a similar amendment at a subsequent stage, because it is well intentioned and helps to clarify the purpose underlying the clause.

Martin Horwood: I am pleased and delighted by the Ministers positive response to my amendment. Under the circumstances, I am more than happy to beg to ask leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Clause 29 ordered to stand part of the Bill.

Anne McIntosh: On a point of order, Mr. Martlew. When the Bill was brought before the Committee, it was a very small Bill with fewer than 50 clauses. However, there are 17 paragraphs in schedule 1 and 54 in schedule 2. I am keen that we have the opportunity properly to scrutinise the schedules and that there will be the opportunity to have stand part debates. I seek your guidance, Mr. Martlew, on whether that should be indicated in advance, or whether debates will be called as a matter of course if there are no amendments to the schedules and clauses. Almost half the content of the Bill is contained in the schedules.

Eric Martlew: There will be the opportunity to debate them at the appropriate point in our proceedings.

Clause 30

Designation of features

Question proposed, That the clause stand part of the Bill.

Anne McIntosh: I am most grateful for the opportunity to discuss clause 30. The Minister and the Committee will be aware that the Select Committee expressed concern about some of the definitions. The Environment, Food and Rural Affairs Committee concluded that it was concerned that bodies that will be able to designate things appear unsure about their scope or scale. The purpose of clause 30 is not in question, but we want greater clarity about what could be designated, how the designating authorities will co-ordinate with one another and how differences of opinion between designating authorities would be resolved. Furthermore, the provisions providing safeguards and appeals should be included in the Bill. To a large extent, that issue has been addressed, so I will confine my remarks

Eric Martlew: Order. You will have the opportunity to speak on schedule 1 stand part.

Anne McIntosh: Indeed, Mr. Martlew. Clause 30 gives additional legal powers to the Environment Agency to specify further and to designate the assets or features that may be considered under the clause, but Ofwat

Eric Martlew: Order. You will have the opportunity to speak on that later.

Anne McIntosh: Will the Minister comment on designationthe power to designate, and the powers given to designating bodiesas a preliminary before we consider schedule 1?

Eric Martlew: The Minister is looking puzzled; I may have allowed the hon. Lady to go too far.

Huw Irranca-Davies: I am happy to expand on that now, but I am wondering whether I will stray into a subsequent debate.

Eric Martlew: We cannot have the debate twice. It would be better if the Minister confined his comments to the schedule.

Huw Irranca-Davies: I note the points, and I will return to the matter when we come to the schedule.

Question put and agreed to.

Clause 30 accordingly ordered to stand part of the Bill.

Schedule 1

Risk Management: Designation of Features

Martin Horwood: I beg to move amendment 139, in schedule 1, page 32, line 5, after environment, add
; including defined geographical areas of landscape..

To make certain that areas of green space important to the avoidance of flooding are clearly able to be designated as well as more obvious physical features such as woods, dykes or watercourses.

Eric Martlew: With this it will be convenient to discuss the following:
Amendment 129, in schedule 1, page 32, line 7, leave out affects and insert
is likely to have a material effect on.
Amendment 25, in schedule 1, page 32, line 15, at end insert
(6) Condition 5 is that a designating authority may only designate infrastructure if this does not compromise its primary purpose..

Martin Horwood: The context of this amendment is, of course, schedule 1 and the powers that it confers. Designation of features sounds administrative and harmless, but buried in the schedule are some major extensions of regulatory power, and we must tread cautiously. In that context, it may seem odd that in amendment 139 I seem to be seeking to extend that remit, but I hope that the Committee will acknowledge that, in later amendments, I propose to mitigate some of the regulatory powers that the schedule extends.
Amendment 139 returns to the issue with which I started my Second Reading speechwill the Bill help Warden Hill? I am trying to place the provision in the context of precise local circumstances and how it will work in practice. I remind hon. Members that that part of Cheltenham has an obvious flood risk in a residential area, which could be exacerbated or mitigated by how the land immediately uphill at Leckhampton is used. The fields uphill are a crucial feature of the local environment. They hold water, and have been marked on a map by consultants working on the flood alleviation scheme at Warden Hill in dramatic blocks of blue showing where the water is held in the landscape. However, it difficult to place them precisely in the context of the wording of the list in paragraph 4(1)(a) and (b) of schedule 1:
a structure, or...a natural or man-made feature of the environment.
Amendment 139 seeks to put beyond doubt the fact that the list may include not just an obvious feature such as a dyke or bund, but an area of landscape that performs a flood management or water management function. That could extend not just to fields such as those at Leckhampton, but to an area of woodland or similar. There could be an argumentsome people would have a commercial interest in making such an argumentfor the definition of a man-made or natural feature of the environment to need just a clearly identifiable physical thing, such as a watercourse, dyke or bund. The purpose of the amendment is simply to point out that that kind of natural feature can mean that a particular area of land performs an important flood risk management function.
I shall not refer to amendment 129 because I think my hon. Friend the Member for Brecon and Radnorshire wants to speak on that, but I shall briefly speak about amendment 25. It raises a genuine problem, which has been emphasised, particularly by Network Rail, to members of the Committee privately. The amendment addresses an important issue, but I have a slight concern about it. Perhaps when the hon. Member for Vale of York speaks she might talk about the fact that it could unintentionally be quite dangerous.
As I understand it, the amendment would mean that infrastructure can be designated only if it does not compromise the main role of the company, which is fine with something as crucial as a railway structure. However, let us say that a wall on a factorys estate is part of flood risk management in that it prevents neighbouring houses from being flooded by containing a river flow. Those who work at the factory might decide to change the wall because their primary concern is nothing to do with flood risk management. They are concerned with the operation of their factory and the wall might for some reason be inconvenient, so they decide to knock it down. I am worried that they might be able to use the clause to justify that, and that the flood risk management authority would have no redress, even if the wall was a crucial link in a chain protecting local people. I hope that the hon. Member for Vale of York can provide me with an excellent explanation of why that would not be the case. I look forward to her remarks.

Anne McIntosh: Before going any further, may I formally move amendment 25, because I understand that if I do not do so, we cannot vote on it later? Is that correct?

Eric Martlew: When we come to it at the appropriate time, you can move it formally.

Anne McIntosh: I simply want the Committee to be able to vote on the amendment.
The Committee will be aware that the National Audit Offices report of June 2007 on the construction and maintenance of flood defences in England found significant regional variations in the proportion of assets maintained by third parties. The report found that the proportion of third-party assets in good or very good condition was lower than for Environment Agency maintained assets. It also found that the agency had limited powers to force other bodies to improve the condition of their assets.
The Committee will be aware that the provision previously formed part 2 of the draft Bill. We need to be mindful of the fact that we should not downgrade the provisions to the status of a schedule because there are some very important issues to be discussed here. We are seeking to insert:
that a designating authority may only designate infrastructure if this does not compromise its primary purpose.
In answer to the point made by the hon. Member for Cheltenham, each case will be considered on its merits and according to the facts involved. I do not wish to be too prescriptive; I just wish to cover the situation that he has rightly identified. There are certain aspects that are currently not covered and it is important to include those in the Bill.
I do not see how amendment 139 adds greatly to the schedule as drafted or to my understanding of what the schedule should be. It is much better to define things and designate objects. I wish that the schedule and, indeed, the Bill went further in that regard.

Martin Horwood: The hon. Lady may have noticed that evidence given to the Environment, Food and Rural Affairs Committee addressed the designation of things and used exactly the same word that she just used. The report states:
We asked our witnesses from local authorities and the Environment Agency about these powers. None seemed sure what a thing was.
Witnesses disagreed on exactly what the definition might mean, and what it might cover. That was one of the specific fears that the Select Committee included in its report. Is the hon. Lady concerned about it?

Anne McIntosh: The hon. Gentleman refers to the same paragraph that I read out in the debate on clause 30. I do not accept that his definition takes the matter any further. We need to define objectsphysical features such as woods, dykes or watercoursesnot amorphous things. I would like to designate features that belong to third parties, which the NAO referred to in that regard.
What I am trying to do in amendment 25 is to narrow down the Ministers all-encompassing powers. There should be a structure for trying to identify who owns the features. There will be issues when we come to discuss sustainable drainage systems that may be more relevant to what the hon. Gentleman is trying to do in his amendment, but I just do not accept his definition as fair.
We are co-signatories to amendment 129, so obviously we support it and may press it to a vote, depending on what the Minister says. I have some general remarks on schedule 1, but those are my remarks on the amendments.

Roberta Blackman-Woods: I wish to make a couple of brief points about amendment 139. This time, I have to say to the hon. Member for Cheltenham that I have some sympathy with what he is saying. Like him, I am trying to keep several of my communities in mind as the Bill is going through. One of them in particular is Elvet Waterside. I want to ensure that it benefits from flood risk management not only because it is on the floodplain adjacent to the river but because it relies on the leisure space and bowling green that provide a part of the floodplain. I would like to hear whether the Minister thinks that such areas will be protected in paragraph 4(1)(b).
I hope the Minister will forgive me if he did this, but I am not sure that he sought to reassure me on the points that I raised in the clause 27 stand part debate. Perhaps he could return to them at some appropriate time.

Eric Martlew: Perhaps not. Perhaps you could discuss it in private.

Roger Williams: I wish to speak briefly to amendment 139, which has been mentioned by my hon. Friend the Member for Cheltenham, and also to amendment 129.
Amendment 139 takes forward the definition of what a feature is. Certainly on this side of the Committee, we are concerned that any natural features that could in some way limit or mitigate flooding should be protected and even enhanced. It is sometimes said that the drainage of uplands to increase agricultural productivity has led to rapidly increased flows of water, and that the flooding in Tewkesbury originated in the constituency of my hon. Friend the Member for Montgomeryshire (Lembit Öpik).
There is work going on in Montgomeryshire whereby upland that has been drained is now being taken back to its original condition, and drainage is being obstructed. It has been shown that that can reduce the flow of water off catchment areas and so mitigate flooding. Amendment 139 defines what could be a strong method of reducing flooding, and the Minister should consider it carefully.
On amendment 129, the designation of features will have implications for individuals, companies, other organisations and third parties, and their ownership of property because it will limit what they can do with their property. It might even put duties on them to maintain or improve it. We must be careful that things cannot be designated without good cause. There should be proportionality. Features should be designated when they materially affect or improve flood prevention work.
Amendment 129 would take out affects and insert
is likely to have a material effect on.
That would raise the bar and ensure that if the owner of property did not believe that a designation was justified in the public interest, he had a defence and an objection to the designation. It is important that we give comfort to those involved in preventing flooding that impositions will not be put on them unreasonably. Raising the bar in this way is one way of doing that and of encouraging their co-operation in these matters.

Huw Irranca-Davies: Amendment 139, tabled by the hon. Member for Cheltenham, would insert an example of the type of feature that may be designated under schedule 1. That would affect paragraph 4(1), which provides that
a designating authority may designate for the purposes of this Schedule...a structure, or...a natural or man-made feature of the environment.
The amendment would add the words
including defined geographical areas of landscape.
Well intentioned as it is, I do not think that the amendment is appropriate because the definition is intentionally broad so that it includes any natural feature that acts as or forms part of a flood defence. To be designated, the feature must have an effect on flood or erosion risks. The idea of having examples of things that might be designated is good, but those should be provided in guidance, particularly considering the variety of things that might be designated. Including them would make the Bill more complicated.
I clarify that the intention is to designate things that have a tangible effect on flooding, such as boundary walls, embankments and culverts, which have been referred to. I acknowledge that there might be broader benefits, as the hon. Gentleman has said about this amendment and others. Some of those were identified in the evidence sessions. The representative of the Woodland Trust stated:
If that feature is also going to have other wider landscape benefits for habitat, recreation and biodiversity in other ways, then by protecting that feature for flooding, you are also protecting all those other public benefits.[Official Report, Flood and Water Management Public Bill Committee, 7 January 2010; c. 50, Q73.]
I do not disagree with that. The critical point is that in protecting a feature from flooding, the other benefits will be protected. The test for such designated features is that they contribute to flood risk management.
I clarify that designations are intended to control things that are important to managing risk on the floodplain, rather than to label the floodplains themselves or afford areas landscape protections that the legislation designed for such purposes has not given. It seems unlikely that woodland would have a sufficient effect on flood risk to be designated, just for the sake of being woodland. It therefore falls outside the original intention. There may be woodland or parcels of land that are used as flood storage. There are many of those in our constituencies. Alternatively, streams of water might be directed through woodland during a flood and it might be helpful to designate that.
We want to avoid inappropriate designation. Given that we are designating parcels of land, if we inappropriately designated something that was not related to flood risk management, we would be increasing the risk of a successful appeal.
I will now consider the interesting question of whether something is a structure or a feature according to the definitions. Structures are generally interpreted as being man-made or managed assets. Features, however, may include or encompass natural features such as mounds, banks or paths over which water flows. The idea is not to enable vast swathes of land to be included arbitrarily, but it could include those things, provided they affect flood risk.
Amendment 129, tabled by the hon. Member for Brecon and Radnorshire, would change one of the conditions, set out in schedule 1, that must be satisfied before a feature can be designated. The condition is that a designating authority may designate only where it
thinks the existence or location of the structure or feature affects...a flood risk, or...a coastal erosion risk.
The amendment would remove the word affects and replace it with the phrase
is likely to have a material effect on.
I do not believe that that would have a material effect on the provision, because that is what the Bill means by the use of the word affects. I will give an interesting example, because we have teased the matter out in discussions as we have brought the wording forward. One effect in one area that is beneficial could have a negative effect down the line. I think that our use of the word effect recognises that one can look at that overall, rather than look just at one instance that might have a material impact somewhere, so we should look at it in the round.
It is clear that the Government do not expect an authority to attempt to designate a structure or feature that did not have a material effect on the risk of flooding or coastal erosion, and the guidance will give effect to that. The appeals provisions provide a further safeguard to prevent that happening. With regard to a duty on people who own features that are designated to maintain them, the Bill does not give that duty to maintain. It provides only that they should not interfere with it without consent. The hon. Member for Cheltenham raised the classic example of something that had not originally been designed as a flood risk management feature but that subsequently provides a flood management role, from a committees perspective. The intention is not to ensure that the landowner maintains the feature, but to ensure that it cannot be interfered with to the detriment of flood risk management. The authority cannot withhold consent unless a flood risk is affected.

Roger Williams: I am listening to the Minister carefully, but if a feature is in the ownership of an individual, a body or a company, what happens if it deteriorates so that its effect on preventing flooding is diminished? Does that mean there is not duty or burden on the owner to improve it or put it right?

Huw Irranca-Davies: No. We considered whether we should bring forward in the Bill a clear and specific duty on individual owners, but that really will take a fair bit of thought. It is very complex, because we could be talking not only about companies, but about an individual living on a smallholding or a house where the wall abuts a stream or river that is part of the flood risk management strategy. That will require much thought, so we have not brought such a measure forward. The Bill enables the Environment Agency, for example, to work with such landowners to try to recognise and designate the features that are important and to try to work reasonably and constructively with them towards its maintenance, but there would not be a duty on the individual to maintain it. However, if that wall, having been identified and designated, was crumbling and falling down, the Environment Agency would be able to work with the landowner to go on to the land and ensure that it was repaired, if it relates to flood risk management in the area. In that way, we can achieve the purposes without trespassing on the rights of individuals too heavily, which I know the hon. Member for Brecon and Radnorshire would not want us to do.
The hon. Gentleman also raised the matter of protection for the owners of the assets, which I have just touched on. The owners may make representations on provisional designation, to say that it should or should not be inthis confers some sort of responsibilityand also to appeal a designation notice thereafter. As I have said, authorities will engage with this so that they are properly informed. And let us not forget that the owner will also benefit from effective flood risk management and probably from the feature being there and being kept in good shape.
We agree that it is important to consider whether a designation could impede the primary purpose of a feature in respect of amendment 25. I would like to reassure the House that under no circumstances do I anticipate that a designation will compromise the primary purpose of infrastructure. But a designation will offer a basic standard of protection to a structure or feature and to those relying on its flood risk management properties, by requiring flood risks to be taken into account before it is altered, removed or replaced. It will be possible to replace the designated structure or feature with another, provided that this flood risk is taken into account. The authority will not be able to withhold consent to a change unless flood risk is affected. In many instances, the owner or operator of a feature designated is also, as I have said, going to benefit from the flood protection, irrespective of its primary purpose.
Therefore, a designation will not affect an operators ability to operate, maintain or repair their infrastructure to ensure that it remains in its current state for its primary purpose. I have to make it clear that in all cases I expect designating authorities to work with infrastructure providers in respect flood risk management and consider carefully whether it is appropriate to issue a designation. The affected parties will, as I have said, have the formal right to make representations in respect of a provisional designation and the authority must take these representations into account. If all else fails, a right of appeal is provided. There is nothing in the provisions that will prevent the provider of infrastructure and a designating authority reaching an agreement in respect of flood risk management without recourse to a designation should they want to do so.
Therefore, with that clarification I ask the hon. Members for Cheltenham, for Brecon and Radnorshire, and for Upminster not to press their amendments, on the understanding that the definition of what may be designated as a feature is intentionally sufficiently broad such that a designation could be made only where it materially affects flood risk, and because the provisions should not impede the primary purpose of infrastructure.

Martin Horwood: I am a little surprised that some of the Ministers remarks sounded ambivalent about the value of broader natural features such as woodland in mitigating flood. Earlier in the Committee I quoted, extensively I think, from the Woodland Trust and their statistics about the impact that woodland can have on reducing flood risk. Before he stands up, I might also quote to him some research by the university of Manchester which has shown that increasing the green space covering urban areas by 10 per cent. reduces surface water run-off by almost 5 per cent., increasing tree cover in urban areas by 10 per cent. reduces surface water run-off by almost 6 per cent., and adding green roofs to buildings in town centres can reduce surface water run-off by almost 20 per cent. So there are many and varied kinds of natural or semi-natural features that utilise the natural properties of soil, trees and plants to retain water.

Huw Irranca-Davies: Far from being ambivalent, we do recogniseI apologise if I was not clearthat woodland can contribute to flood risk management. But it is important that a designation is in respect of flood risk management, not woodland per se.

Martin Horwood: I am not entirely sure I have been helped by that intervention, which seemed almost to contradict itself. Perhaps the Minister would be absolutely crystal clear on this. Does he think that this intentionally broad definition could cover a feature such as a field or woodland if those had been identified as important to flood risk management?

Huw Irranca-Davies: Indeed, if they were designated as features that contribute to the flood risk management. Theres the rub. That is the important aspect of it. It is not appropriate to designate a woodland or a feature for its own sake. It has to contribute to flood risk management. So, on that basis, yes.

Martin Horwood: Good. We may have a result in that case. If so, I may not press amendment 139 to a vote.
Turning briefly to address amendment 129, we may return at other stages to the pretty onerous powers conferred by the Bill. If we do not further amend the Bill in some respect or other, we would allow the Environment Agency and other flood risk management authorities an alarming and surprising degree of control over peoples own property. The Minister keeps using phrases suggesting that he does not anticipate that compromising primary purposes, but I am not sure whether that would be enough to satisfy Network Rail and some worried landowners and farmers. We will have to return to that under the aegis of other amendments, as I do not think that we will press these two to a vote.
I leave the Minister with one thought. Although he seems to be clear about the definition of a feature, the Environment, Food and Rural Affairs Committee was crystal clear. It said:
We are concerned that bodies that would be able to designate things appear unsure about their scope or scale. The purpose of the provisions is not in question but there needs to be greater clarity about what could be designated, how the designating authorities would coordinate with one another and how differences of opinion between designating authorities would be resolved.
Those are real issues, to which the hon. Member for Vale of York has also alluded.

Eric Martlew: The hon. Gentleman appears to have moved on. In effect he has entered the schedule stand part debate.

Martin Horwood: In that case, I beg to ask leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Eric Martlew: Did the hon. Member for Vale of York wish to press amendment 25?

Anne McIntosh: No.

Martin Horwood: I beg to move amendment 140, in schedule 1, page 32, line 18, after authority, insert
except where routine maintenance or maintenance for safety purposes is required of a structure, and where routine maintenance or use or good management is required of a natural or man-made feature of the environment..

To ensure that every act of routine maintenance, agriculture or good land or woodland management in or to a designated feature doesnt require bureaucratic approval or put the owner or manager at risk of prosecution.

Eric Martlew: With this it will be convenient to discuss the following: amendment 141, in schedule 1, page 32, line 36, leave out affect and insert significantly increase.

To raise the bar for refusal of consent so that the designating authority has to show the action proposed would actually increase flood risk to the point where other considerations such as ecology, health and safety etc would be outweighed.
Amendment 160, in schedule 1, page 35, line 42, after consent, insert or conditions.

Martin Horwood: Amendment 140 addresses the area of unintended consequences. I hope that the unintended consequences that we will be pointing out will horrify the Minister once we draw his attention to them.
Paragraph 5(1) of schedule 1 is far too broadly drafted. If we look at it precisely, the wording says:
A person may not alter, remove or replace a designated structure or feature without the consent of the responsible authority.
That is an incredibly broad definition when we are talking about things that may require maintenance, that may require proper attention in their normal usagesometimes that might mean rebuilding, sometimes growth if we are talking about natural features, sometimes harvesting, or sometimes ploughing if we are talking about fields. The Minister very kindly pointed out that the definition in the schedule is broad enough to include such features, provided that they have been specifically identified as having a role in flood risk management.
Yet, on the face of it, it is not only Network Rail that would have to seek permission to maintain something, even something that they might think is essential to the safety of rail passengersa landowner might have to seek permission to maintain and carry out proper land management of a piece of woodland, hedgerow or some other part of the landscape; a farmer might, in theory, if we take this to absurd extremes, have to seek the permission of a flood risk management authority before ploughing a field if that field had been identified as important to flood risk management and had been designated as a feature. Although it seems absurd that a lead local authority, an IDB or some other body might take it to that extreme, the trouble with such legislation is that if we require such fine judgments about whether something is justified or not, the legislation places all the cards in one players hands. In this case, the Bill would place all the powers in the hands of the flood risk management authorities; if they designate a feature, they have carte blanche to insist that a property owner needs consent. It then takes the power away from the particular landowner or asset owner, who would not have a leg to stand on if they disputed the powers being exercised.
I can imagine a special exemption being negotiated for Network Rail, which has made a particular case on the clause, but what about other bodies, landowners and smaller tenant farmers or upland hill farmers? They would not have the wherewithal to challenge such rules. The clause gives extraordinary power to flood risk management authorities, and that needs to be qualified. We have specifically done so in amendment 140, which inserts
where routine maintenance or maintenance for safety purposes is required
or
where routine maintenance or use or good management is required of a natural or man-made feature of the environment.
I hope that form of words would take care of the worries of Network Rail and also the concerns of landowners and farmers.
Amendment 141 addresses the same kind of issues, but leaves out the very broad word affect flood risk, and inserts the phrase significantly increase. That is partly on a purely logical basis. One would think that if somebody was going to change a flood risk feature, they would want to reduce flood risk, and that would be the perfect grounds on which to do it.
I have an example in my constituency. There is an area called Keynshambury road which backs on to Sandford park in the middle of Cheltenham. The River Chelt, which is one of the EAs main rivers, passes behind a row of houses. A wall that was maintained by the Environment Agency looked as though it protected all those houses. It came to an endit simply stoppedand effectively went down to ground level. When the floods of 2007 happened, the floodwater went around the end of the wall and flooded all the houses. The wall had no impact whatever, except to hold some of the water back in the gardens and prevent it from flowing back into the river. It was the absolute opposite of what it was intended to do. In fact, the Environment Agency had told local residents that they were not allowed to touch that wall. They would not even have been allowed to repair an obvious crack or break, and were not allowed to add to it in order to make it a complete flood defence.

Anne McIntosh: I have great difficulty seeing what the hon. Gentlemans comments have to do with schedule 1 and designation of things or features. I am sure the hon. Member for Brecon and Radnorshire will agree that schedule 1 and all the points I want to make in a short clause stand part debate would be entirely in keeping. Why are we going on at such length about something that, on any reasonable consideration, does not

Eric Martlew: Order. Is this an intervention on the hon. Member for Cheltenham?

Anne McIntosh: I am having great difficulty following how the hon. Gentlemans remarks fit in with schedule 1.

Martin Horwood: Paragraph 6(5) is about consent to alteration, removal or replacement. Once one of these features is designated, extraordinary powers are conferred on the flood risk management authority, which in effect, controls them. The paragraph states that
the responsible authority may refuse to give consent applied for under subparagraph (3)(a) only on the ground that, in the authoritys opinion, the proposed alteration, removal or replacement would affect a flood risk or a coastal erosion risk.

Eric Martlew: Order. I think the hon. Gentleman has proved his point in order. If he had not, I would have ruled him out of order.

Martin Horwood: Simply, the use of the word affect means that one cannot even use the defence that one is improving flood defence to justify working on ones own property. That is a complete nonsense. The scope is so wide that the refusal of consent could put the asset owner in an unreasonable position with respect to the flood risk management authority. Again, it puts all the cards in one players hands.

Roberta Blackman-Woods: I want to speak about amendment 160. It is a very straightforward amendment. Essentially, it asks the Minister to provide a right of appeal against conditions that have been imposed by an authority providing consent for work, and the ability to appeal against the refusal of consent. The schedule outlines the circumstances in which an appeal can be made, which do not currently include appealing against any conditions. That point was raised by the National Farmers Union in the evidence session. I will not press the amendment this evening, but will the Minister reconsider the matter?

Huw Irranca-Davies: Let me deal first with amendment 140, which was tabled by the hon. Member for Cheltenham. The amendment seeks to set out what maintenance is acceptable in respect of a feature designated under schedule 1. As the hon. Gentleman said, the amendment would affect paragraph 5, which states:
A person may not alter, remove or replace a designated structure or feature without the consent of the responsible authority.
The amendment would add
except where routine maintenance or maintenance for safety purposes is required of a structure, and where routine maintenance or use or good management is required of a natural or man-made feature of the environment.
Authorities will not seek to prevent the normal management or operation of a feature that keeps or restores a feature to the condition it was in at the time of designation. The purpose of designation is not to require any owner of a designated asset to do anything other than to continue its normal use. What will require consent from the authority is a material change to that designated feature. That is because a change could increase the risk of flooding and of coastal erosion. An authority will need to consider whether flood or coastal erosion is affected. If it is, the consent may be refused. However, consent cannot be refused if there is no effect on flood risk. Any designation or refusal of consent would have to be reasonable and be subject to appeals. I refer hon. Members to paragraph 15 of the schedule.
Amendment 141, which was also tabled by the hon. Member for Cheltenham, seeks to amend the wording of paragraph 6. As it stands, the provision prescribes that an authority may only refuse consent for an alteration, removal or replacement of a designated feature on the grounds that the proposed change
would affect a flood risk or a coastal erosion risk.
The amendment seeks to change the provision so that consent may only be refused if the proposed change to a feature would significantly increase the risks.
Let me make it clear that authorities will not seek to use a designation to prevent maintenance or repairs being carried out that will keep or restore the asset to its present state at the time of designation, nor will designation prevent a change from being made, provided that flood risk is not increased or affected. The only circumstances under which an authority could refuse a removal, an alteration or replacement are where the flood risk or coastal erosion risk is affected. I am not convinced that any further safeguard is necessary.

Martin Horwood: Will the Minister give way?

Huw Irranca-Davies: Let me expand a little, because I need to explain the nature of the wording proposed by the hon. Gentleman. As they stand, the provisions seek to prevent any increase in risk. It may not be its intention, but the amendment runs the risk of allowing a gradual, iterative and accumulative reduction in flood risk protection, which, over time, could have significant consequences. So, the current provision refers to the effect on risk. However, there would clearly be no grounds to refuse permission for the work proposed if its effect would be to reduce the risk of flooding.

Martin Horwood: I accept the Ministers point about the progressive and cumulative potential of small changes, but, nevertheless, he is therefore arguing that even maintaining a piece of woodland would need consent. Even if that were not unreasonably refused, nothing in the Bill would stop a flood risk management authority designating that piece of woodland as a flood risk management feature and insisting on consent for maintenance.

Huw Irranca-Davies: To revert to our earlier discussion, that is exactly where the appropriateness of the designation must be precise. That woodland, flood meadow or whatever must be appropriately designated as part of the flood risk management within that area and become a designated asset for the purpose of what we are discussing. On that basis, anything that was done to that woodland that did not materially affect it would cause no concern whatever. The issue relates to instances in which the capacity of the asset that has been identified as contributing to flood risk management is diminishedtherefore, someone could maintain, repair, plant, sow or do whatever.
The hon. Member for Cheltenham painted a picture earlier and saidI cannot remember his exact wordsthat such a situation would clearly be ridiculous. He is absolutely right. The idea that the authority would say, Im sorry. You cannot plant additional trees there, or You cannot replant or thin out or whatever, is ridiculous. A duty of reasonableness must be applied. Therefore, the more spectacularly ridiculous situations simply should not apply.
Let me make it clear that a designation does not restrict maintenance that simply maintains the asset in its existing state. Indeed, a formal requirement has not been included to maintain a feature to a given standard for the purposes of flood risk management. The issue has been considered and explained in the consultation response. There may be concern among infrastructure operators that construction and change to infrastructure may be impeded. I seek to offer clear reassurance on that point. My officials are already meeting Network Rail to discuss those issues. A designation does not prevent a change from being made to the structure or feature; what it does require is the consent of the designating authority. Such consent cannot be unreasonably withheld.
Network Rail in particular has been concerned that authorities would try to designate things that are not suitable to flood defence. We have given it the reassurance that if something is not suited to flood defence, it would not be designated. Operating authorities would engage with infrastructure providers in the course of establishing what should be designated. If all else fails and there is a ridiculous or unreasonable designation of a particular feature, the right of appeal remains.
Network Rail was also concerned about the duty to maintain and that it would be required to maintain things to a higher standard. We have assured it that there is no formal duty to maintain and although an enforcement notice might require remedial action to restore the feature to its state at the time of designation, under no circumstances could a higher standard of defence be demanded. The hon. Member for Cheltenham also referred to the authority controlling a person by means of designation. As I have said, the measure does not mean that they cannot make a change, but it is important that we designate the correct assets. That is the crucial point.
Amendment 160, tabled by my hon. Friend the Member for City of Durham, would strengthen the right of appeal in respect of the designation of features under schedule 1. The amendment would add a right of appeal against the conditions that an authority may set in granting consent to an application for alteration, removal or replacement of a designated feature. Conditions would normally be specific requirements relating to the time and nature of works.
I know that the NFU, and possibly others, is concerned that an individual would not be able to appeal against the conditions. We have a comprehensive set of appeals in the Bill and it is only right that individuals are also able to appeal consent conditions. That would be in addition to the right of appeal in respect of outright refusal to consent to a change, to cancel a designation or in respect of an enforcement notice. So my hon. Friend makes a valid point that we should consider granting right of appeal. That was always the policy intention, but it might be that the provision does not adequately deliver it, as she has spotted. I am happy to look further at the matter. In the light of that, perhaps she would be prepared not to press the amendment, as she indicated.
On the other amendments, I can assure the Committee that the provisions in the Bill are not designed to prevent routine maintenance or the keeping in working order of a designated feature. For that reason, I ask the hon. Member for Cheltenham to withdraw amendment 140 and not to press amendment 141.

Martin Horwood: Somebody once said that the only freedom that counts is the freedom to do what somebody else thinks is wrong. If everybody agrees that something is a reasonable consent, designation or piece of maintenance, there is absolutely no problem. Clearly, that is the ideal world in which the Minister would like to live. The problem is that it is precisely when one person says, That is ridiculous. You cant do that, or another person says, It is ridiculous to refuse consent for this. This is something that I absolutely have to do, that the wording of the Bill matters.
I can imagine a situation where someones woodland or even hillsideI can think of a case near where I livemight be designated as important to flood risk management because the vegetation holds water. Good land management dictates that occasionally one has to cut back the vegetation and reduce its volume. Under the terms of the Bill, if that meant that the flood risk increased while the vegetation was regrowing, the land manager would have to go through the time and effort of seeking consent to do the work. The flood risk management authoritythe lead local authority or whoeverwould be perfectly within its rights to refuse the land manager the right to cut back the vegetation because, on the face of it, that would increase flood risk, yet it would be part of good land management.
The land managerin some cases, common land and a voluntary organisation might be involvedmight have to decide whether to put in all the time, effort and expense and possibly lose an appeal, or, frankly, to give up and do something more productive with their life.

Huw Irranca-Davies: I am worried that we might be arguing about slightly different things. I have tried to make it clear that a natural feature such as a woodland or meadow would be designated only if it can be identified and designated as being pertinent to flood risk management within the area. That is the only occasion. It is important that we get that right first of all and do not designate for its own sake.
People might want to protect a local woodland and designate it in some way that will protect it for ever and a day. The Bill does not deal with that. If we get the designation correct, of a parcel of land for example, it becomes a feature as designated, and it is right that the same conditions should apply there as elsewhere. The important thing is to designate for the right reasons, and to ensure that the designation is targeted specifically at the feature that satisfies the need to protect against flood risk.

Martin Horwood: I am not sure that I am reassured at all by the Ministers comment. By definition, we are talking about things that have been designated as important to flood risk management. As we have argued on various occasions and seem to have agreed until now, that can include natural landscape features.
We live in a largely artificial landscape in this country. Even the countryside is largely artificial. It requires active land management and attention, and sometimes the cutting back of vegetation or the maintenance or dredging of channels. All those things require active intervention on an ongoing basis, yet paragraph 5(1) of the schedule states that, once the appropriate designation has taken place:
A person may not alter, remove or replace a designated structure or feature without the consent of the responsible authority.
May not alter in any way, presumablythere is no qualification in the schedule. That is an incredibly onerous restriction on active land management, not to mention Network Rail and other people whom we have discussed.
Even if it is completely reasonable and desirable to designate a feature as a flood risk management feature, the schedule confers an extraordinary power. We are simply seeking to qualify it and make it more obviously reasonable.

Huw Irranca-Davies: This is my last intervention, Mr. Martlew. If an embankment is identified and designated and the farmer decides to ram a hole through it, that is one thing. But for someone who has a field or meadow that has been rightly designated as part of the scheme, the place in which we can describe the kind of relationship that we would expect between the designating authority, the consenting authority and the landowner will be the guidance, not the Bill. We can expand on such things and bring forward proper ideas for how it would work. It is ridiculous to suggest that someone would say to a farmer, We have designated that. I am sorry, but that is the end of your farming.

Eric Martlew: I have a feeling that we are going round and round, gentlemen.

Martin Horwood: I accept your guidance, Mr. Martlew. We seem to be in a circular situation where the Minister is arguing that something is not in the Bill yet paragraph 5(1) clearly puts it in the Bill. I am inclined to press the amendment to a vote.

Question put, That the amendment be made:

The Committee divided: Ayes 2, Noes 11.

Question accordingly negatived.

Eric Martlew: I am conscious that Members have been here a long time. I intend to suspend the sitting for half an hour.

Sitting suspended.

On resuming

Martin Horwood: I beg to move amendment 142, in schedule 1, page 35, line 24, after second the, insert reasonable.
To prevent this Schedule being a general get-out for any loss or damage caused unreasonably. At present it simply has to be shown that it was the result of a power of entry exercised under 13(1) which will be true in almost every case.
The amendment concerns compensation that is payable to a person who has incurred loss as a result of a flood risk management authoritys power of entry. As it reads, compensation would not be due if the loss or disturbance incurred was as a result of powers conferred by paragraph 13(1). That paragraph gives all the various powers by which a responsible authority may at any reasonable time enter land. That creates a circular position whereby no compensation is payable for loss in circumstances which are the only circumstances in which powers of entry may be exercised. The conditions for compensation not being paid will therefore be satisfied in almost every case, as far as I can see. My question to the Minister is, when can compensation be paid?
The amendment would explicitly apply a test of reasonableness. I have heard the argument in relation to other amendments about reasonableness being a condition that applies in any case, so no doubt I shall be told that the amendment is superfluous, but it addresses an important issue. There must be some prospect of compensation for losses incurred as a result of activity during the exercise of powers of entry that unreasonably damages property, land, crops or whatever happens to be at stake, and I would like to know more about the circumstances in which that action might take place.

Huw Irranca-Davies: The amendment relates to compensation under schedule 1. Paragraph 14 sets out the circumstances in which an authority must pay compensation to a person. Compensation would be in respect of damage caused by an authority in exercising its powers of entry, and those powers of entry are set out in paragraph 13. They enable authorities to enforce designations, and to put things right if the owner refuses to do so. The powers include entry to check compliance with a designation notice or enforcement notice, and enable an authority to take the steps set out in an enforcement notice when the owner has failed to do so. There is also provision for the authority to take action in an emergency to restore a feature.
The clause as drafted requires compensation to be paid if a person has complied with the law but suffered damage. The hon. Gentlemans point that the conditions for not paying compensation will always be satisfiedthat it is circularis not valid. It is necessary for the person to have infringed the designation or an enforcement notice. If the person had not infringed the designation or an enforcement notice, compensation will be paid, but it is not payable if the person had breached a designation notice or had failed to comply with an enforcement notice. It also means that if damage has been done to a neighbouring property, compensation is payable.
The amendment would affect paragraph 14(3), which states that compensation will not be paid to a person who has suffered damage if they have contravened a designation notice. That would mean that they had made an alteration, removal or replacement to a designated feature without consent. The amendment would offer compensation if the authority had acted unreasonably. I appreciate the idea, because the individual property owner would have no control over that. Just because a person has breached a designation or an enforcement notice does not mean that they should have to suffer unreasonable damage to their property. In practical terms, the authoritys ability to make good something that has been damaged or has deteriorated should not enable it to tramp willy-nilly over property and cause unreasonable damage in so doing.

Martin Horwood: So, in a situation in which a designation noticefor example, for clearing a water channelhas not been complied with, and therefore the authority believes that the landowner is in breach, and its officials enter the land to try to carry out the work, but in the process accidentally damage a piece of equipment, presumably the damage would not be compensatable because both the conditions in paragraph 14(3) are satisfied.

Huw Irranca-Davies: No. I would expect the enforcing authority, in exercising its duty to be reasonable in the circumstances, would have discussions and engage with the landowner to ensure that when it enters the land to rectify the feature that has been damaged, or whatever, it does so in a way that minimises damage to the property. Acting unreasonably might involve not telling the landowner that it needs to go on to the land to remove a feature that has fallen into disrepair or to clear a brook. The authority should say, Can we talk about which ways we should get on to the land to minimise damage? Is it by this path or across that field? If it did not do so, but simply rode roughshod, taking a path that damaged the individuals property unnecessarily, compensation could well be payable.
There is a way forward on this. The hon. Gentlemans point is valid. If an authority comes on to somebodys land, which it can rightly do under the Bill, we do not want to see unnecessary damage caused as a result. There is not a de facto power for the authority to do whatever it wants. It has to be reasonable in the way that it uses the power. I am happy to make the commitment that we will spell out in guidance exactly what will be expected of an authority: it should seek to avoid any damage and should work with the landowner to seek access and so on. An emergency might produce difficult situations, but I think we can provide clarity on that in guidance. The first approach must be to try to avoid any damage. If damage must be caused to get to an inaccessible part of a field, for example, the aim must be to minimise it. That is the approach that we are looking at.
I do not think that the amendment is required because, as has been mentioned, under administrative law, authorities must act reasonably in exercising their functions. If an authority is not exercising powers in relation to the right of entry, it is likely to be trespassing and the owner would have civil remedies.

Martin Horwood: Setting aside the issue of damage, when will there ever be a circumstance in which a flood risk management authority does not fulfil Condition 1 or 2 of paragraph 14? Regardless of whether it causes damage, it will always fulfil one of those conditions.

Huw Irranca-Davies: If an authority enters the land justifiably, in relation to the powers in the schedule, it still has a duty to act reasonably at all times. The power does not give it the opportunity to tramp willy-nilly across somebodys land. It gives it the power to access land in a reasonable way to remedy something that has happened to the detriment of an asset.
The hon. Gentleman asked whether the owner could be the victim of uncompensatable damages for not clearing a water channel, for example. No; the owner is under no obligation, as a result of designation, to clear a water channel or to take any positive action. He has raised a real issue, however, and I am happy to undertake to set out in guidance the approach that an authority will have to take when exercising this power. Broadly, that guidance will be to avoid damage to property and to minimise damage if it is unavoidable. On that basis, I ask him to consider withdrawing the amendment.

Martin Horwood: I am still not sure that the Minister has answered my question. I am now entirely familiar with his argument that any flood risk management authority has to act reasonably under all circumstances and that the law will support that, but the simple fact is that the conditions in paragraph 14(3) and (4), Conditions 1 and 2, are the very conditions needed for entry to the property in the first place, so it is a circular argument. By definition, they will always be fulfilled, unless, as in the rather strange example the Minister suggested, the flood risk management authorities trespass on peoples land, which seems unlikely, so I think we can disregard that.

Huw Irranca-Davies: There is another clear eventuality: that the flood risk management authorities go on to the land because they suspect that a feature has been interfered with, but in doing so they find that it has not. In that case, the power has been used but the condition that the owner has interfered with the feature has not been satisfied. That is a clear example of where that could happen. On that basis, compensation would be payable.

Martin Horwood: I am sorry, but as far as I read it the Minister is quite wrong. Condition 1 is that
the loss or disturbance is the result of the exercise of powers conferred by paragraph 13(1)(a) or (d),
and paragraph 13(1)(a) sets out the power to enter land
to determine whether a person has contravened paragraph 5(1).
Exploratory powers of entry are explicitly allowed and that condition would be fulfilled, so if damage was caused the landowner would say, Hang on a minute. You entered my land to try to discover whether I was contravening the designation conditions. And the Environment Agency will be able to respond, We are sorry, but we were fulfilling condition 1 of paragraph 14(3) of schedule 1, so no compensation is payable.
I cannot see any way to get around that.

Eric Martlew: I get the feeling that we are repeating arguments.

Martin Horwood: It seems to me that an answer has not been given and that the clause gives a blanket opportunity for flood risk management authorities, whether the lead local authority or the Environment Agency, to refuse to pay compensation, merely on the grounds that they had a legitimate reason to enter the property in the first place. That means that, even if they think they are acting reasonably but accidentally cause damage to valuable property, and although they have the opportunity to compensate for it, the clause gives them the perfect get-out.

Huw Irranca-Davies: I do not think that the hon. Gentlemans amendment is necessary, and I have explained why. However, it would not actually detract from the substance of the clause, so if it would help to speed up the Committees progress I am happy to concede to the spirit of what he is saying by taking it away and bringing something back on that. I do not think that it is necessary, but I am happy to do that.

Martin Horwood: I am delighted by the Ministers words and beg to ask leave the withdraw the amendment.

Amendment, by leave, withdrawn.

Question proposed, That the schedule be the First schedule to the Bill.

Anne McIntosh: I invite the Minister to respond to the points I made earlier and wish to draw his attention to some of our other concerns. He is aware that I sit on the Environment, Food and Rural Affairs Committee and that that Committee expressed its concern that the bodies that will be able to designate appear to be unsure about their scope or scale. We all agree on the purpose of the provisions, but we seek greater clarity about what can be designated, how the designating authorities would co-ordinate with each another and how differences of opinion between them would be resolved, and that relates largely to paragraph 1 of schedule 1.
The Select Committee also raised concerns about the appeals procedure. I repeat that there are 17 paragraphs in the schedule, as the Minister is aware, and I would be interested to know, now that the manager is not in the room, what the Governments thinking was behind that. Rather than simply pleasing the usual channels and managers of the House, would the Minister explain what the thinking was behind putting that in a schedule? Does that weaken its legislative force?
I am hesitant about regulations providing the right of appeal against designations and refusal of consent, as set out. I am entirely in agreement with the Select Committee on Environment, Food and Rural Affairs, which said that safeguards and appeals should be included in the Bill, and I would prefer them to be on the face of the Bill. The Committee goes as far as to say that lack of such provisions in the Bill is a serious deficiency, and I find some sympathy with that. The legislation, in its present form, would confer substantial, far-reaching powers on designating authorities. The checks and balances should have been available for this Committee, and the EFRA Committee, to scrutinise, and for interested parties and partners to comment on as part of the consultation.
It might also be helpful to obtain the Ministers comments on the fact that the EFRA Committee wishes to exclude the Minister from the list of bodies that can consider such appeals. The Local Government Flood Forum appreciates that the ability to designate features will be useful. I share its concern that the guidance to the Bill links designations to the register of assets, implying that lead local flood authorities will develop comprehensive designating programmes. What funds does the Minister envisage will be at their disposal? If he says that their existing resources must be used, in all probability they might feel unable to develop such a comprehensive approach unless they have the means at their disposal.
Ofwat has raised concerns about the schedule. It is worried about local authorities far-reaching powers to designate assets that affect flood or coastal erosion risk management, under schedule 1. Ofwat gives the example that a local authority could choose to designate all or part of the public sewer network that a water or sewerage company operates. The company could not then alter, remove or replace its network without consent. It is a similar argument to that which we had before, but Ofwat has raised particular concerns there.
The Country Land and Business Association, the CLA, has raised a number of concerns about the prescriptiveness. The first condition for designation is that
the structure or feature affects
a flood risk, or
a coastal erosion risk.
and in the CLAs view that is simply far too broad.
Under paragraph 1, are there no circumstances under which the Minister would either limit or expand upon Designating authority? Does he believe that that is an exhaustive list? I wonder if he could shed some light on how Responsible authority should be interpreted? To what extent will the Owner of the infrastructure or landin fact, all interested partiesbe consulted about the guidance that he has stated will be issued?
Paragraphs 4 and 5particularly paragraph 5really are very far-reaching. Paragraph 5(1) reads:
A person may not alter, remove or replace a designated structure or feature without the consent of the responsible authority.
On the first reading of it, that really is very prescriptive and very wide-reaching. I wonder if the Minister could define the designation of a local land charge more specifically?
Those are our main concerns. We believe that the schedule is prescriptive; we believe the guidance, the consent procedures and, indeed, the appeals procedures should be made clear on the face of the Bill. We do have some sympathy with the EFRA Committee and others, who say that schedule 1 is defective in that regard.

Roger Williams: I rise to express my support and that of my hon. Friend the Member for Cheltenham for this first schedule to the Bill, in the sense that we believe it is appropriate to designate certain features that have an effect on flood management and coastal erosion. However, we have difficulty with the tenor of the schedule.
One issue is that we have four designating authorities: the Environment Agency, the lead local flood authority, the district councilwhether or not it is the lead local flood authorityand internal drainage boards. The owner of a particular feature could have four designating authorities looking at any ownership he has of any feature. We have to consider the matter from the viewpoint of an individual, a company, a business or any other bodyperhaps even a charitable bodyand the fact that they will have to deal with four designating authorities. The complexity of the measure is immense.
The other issue is that of proportionality. I am pleased that my hon. Friend has been able to tease out of the Minister that the schedule is not to do with hard defences or just with watercourses, banks and those types of structures, but that it is also to do with environmental features such as woodland, moorland and various other quality biospheres that could play a part in mitigating flood occurrences. We are pleased that the Minister has accepted that.
The key issue is whether the schedule is proportionate. I think the Minister used the term willy-nilly, so I would like to ask him whether the schedule gives a designating authority the opportunity to designate something willy-nilly without balancing the effect and the burdens on individuals, companies and other bodies with the public good that it might do. Looking at the schedule, it seems easy to designate. It is more difficult to object to the designation, and it is virtually impossibleit is not impossible, but someone would have to go to great legal lengthsto ever have a designation lifted on a particular feature.
The question we ask in the stand part debate is not whether it is a good thing to be able to designate somethingit should be possible to ensure that features are there to mitigate flood occurrencesbut whether the measure is proportionate. That is the question the Minister must answer.

Huw Irranca-Davies: Let me go back to the previous points raised by the hon. Member for Vale of York. We had a discussion some time ago about things needing to be defined more closely and on the comments that the EFRA Committee made regarding that. We took on board EFRAs constructive suggestions, and the provision has moved on from the draft on which the EFRA Committee commented, which is why the guidance is in the schedule. The guidance shows that any structure or feature that affects the flood or coastal risk that the designated authority manages is included: walls, embankments, culverts, natural features and so on, as has been discussed.
The hon. Lady also mentioned the issue of uncertainty about what is a feature. If there is uncertainty, that is simply because we have not consulted on and issued the guidance yet. The type of features involved will vary from area to area depending on the risk that each authority manages, but it is important that the guidance gives some clarity on that. In response to her query, the type of feature could vary from area to area to suit the local circumstances.

Anne McIntosh: Does the Minister not accept that it would be enormously helpful to the Committee and to those monitoring its work if the guidance had been published and consulted on at this stage, so we had greater clarification on those points? I hope he will go on to explain why the provisions are part of a schedule, rather than part of the main content of the Bill, and what the legal implications are of that.

Huw Irranca-Davies: I was going to address that issue straight away. Whenever I have been involved in a Bill, we have always triedtime and resources permittingto bring forward guidance on matters. We have done the same with SUDS in this Bill. We have done as much as we can within the time available. It would be ideal if we had that guidance to look at now, but we cannot promise anything. What I can promise is that when we bring it forward, it will be properly open for consultation, including for input from the hon. Lady, members of the Committee and others to ensure that it is right. Putting such a matter in a schedule does not weaken the provision. Schedules have equal status to clauses. It is purely a matter of the arrangement of the Bill.
The hon. Lady rightly raises the issue of funding. The additional funding, on which we had an earlier discussion, will be a new burden, so we will seek to keep it under review as part of the debate that we had previously with the Local Government Association and others to ensure that it is properly represented throughout the local government settlement as part of the revenue support grant.
The hon. Lady also asked why local land charges were considered appropriate. It is because they can be transferred when a property is sold or bought. It is a much more efficient and less burdensome system than redesignating every time there is a transfer of property just because the owner changes. It also lets people know what is designated. I would be able to find that out by searching the title of the property.
The hon. Lady raised the issueI am worried about this one, it keeps coming upof removing the Minister from various provisions. In this case, she is talking about removing the Minister from appeals and provisions. I promise that I am not trying to build some great tyranny of Ministers and their powers, In practice, as we have made it clear before, appeals would normally be heard by a court or tribunal, which would ensure impartiality and independence. In some circumstances, it may be appropriate that another body takes on the court tribunal role. If the Minister is so moved, the provision will allow him to make the designation to another authority. If we take the Minister out of the equation, legislation would be needed to refer a case to an alternative body, which is unlikely to be in the interests of the appellant or a good use of parliamentary time. We had that debate earlier in the Committee. It is not unreasonable for a Ministerme or someone elseto have that ability, and there would be no conflict of interest. As in the situations that we have previously identified, it is most likely to be a delegation of that particular function.
The question of why the appeals provision is not in the Bill was also raised. The Bill provides for the appeals mechanisms to be defined in secondary legislation, because the arrangements for the appeals process are essentially administrative and process-oriented. As such, they are unlikely to be controversial. Regulations will also enable us to reflect any change in circumstances in future should it become necessary.
The hon. Member for Vale of York also raised the issue of what would happen if more than one authority designated a feature. It is relatively likely that more than one authority would wish to designate the same feature. Paragraph 4 prevents more than one authority designating the same feature. Furthermore, to prevent any potential confusion, a designating authorityagain, it comes down to the issue of working with each othermust inform other authorities with an interest, register a designation as a local land charge and comply with the duty to co-operate under part 1 of the Bill. Therefore, each authority will manage assets relevant to their own risk functions as under paragraph 4(3). The Bill requires authorities to inform one another of the exercise of their powers of designation. There is also a wider duty to co-operate.
The hon. Member for Brecon and Radnorshire raised the overarching issue of proportionality of the schedule. I welcome the way in which he introduced his remarks because he recognised the necessity of having to designate the features for flood purposes. He rightly said that the powers need to be exercised in a reasonable way. We have the duties of reasonableness, which I will not go over again. We have the appeals process and the ability to make representations. We have the compensation in the provision. It does not interfere with existing usewe also had that debate. It is relatively easy to get consent to alterations; we do not want to stymie that. To clarify the point made by the hon. Lady about appeals, in practice that will be to an independent body.
Let me turn to the other points raised by the hon. Member for Brecon and Radnorshire, particularly with regard to parallel powers for authorities creating something of a mishmash, a free-for-all. We do not believe that will be the case. There is a clear duty to co-operate, which we debated under part 1. That should help avoid disagreements between operating authorities in designated features.

Roger Williams: I do not dispute that all the designating authorities set out in the Bill would have an interest in the process, but could there not be a lead authority rather than so many authorities?

Huw Irranca-Davies: Indeed. To clarify, there is a lead local authority. So it is the duty of that lead local authority to keep a register of assets in its area and the record-keeping of other authorities. There is also the duty to co-operate; one authority in one area exercises its function but also has the duty to keep the other authorities informed. In practice, this will work very well.
The hon. Gentleman asked which bodies can designatethe Environment Agency; internal drainage boards, and, of course, local authorities. Along with the comments on the stand part debate, I am pleased that we had the opportunity to discuss the issues.

Question put and agreed to.

Schedule 1 agreed to.

Clause 31 ordered to stand part of the Bill.

Schedule 2

Risk management: amendment of other acts

Huw Irranca-Davies: I beg to move amendment 64, in schedule 2, page 40, line 10, leave out Conditions 1 and 3 are satisfied and insert
(a) Conditions 1 and 3 are satisfied, or
(b) Conditions 1 and 4 are satisfied..

Eric Martlew: With this it will be convenient to take Government amendments 65 to 67.

Huw Irranca-Davies: The amendments would ensure that the Environment Agency has clear oversight of all flood and coastal erosion risk management works that relate to the sea. Part of our effort is to clarify the roles and responsibility.
The amendment has the effect of requiring IDBs, district councils, and lead local flood authorities where there is no district council, to obtain the consent of the EA in order to carry out flood risk management works that relate to flood risk from the sea. That is done through the introduction of condition 4; as a result, consent will be required only in relation to major works. Those are: new works; improvements or alteration to works; maintaining or restoring natural processes; managing water levels, and demolition of works. Day-to-day works such as maintenance, operation of equipment, monitoring, and investigating and surveying a location do not require consent. That ensures that the condition is not unduly burdensome. This is consistent with and complements the EAs role under the Coast Protection Act 1949 as amended by schedule 2(5) to the Bill, which gives the EA powers to approve coast protection works.

Anne McIntosh: Just for the sake of clarity, are we speaking only about amendment 64?

Eric Martlew: We are taking them all.

Anne McIntosh: In terms of coastal erosion and risk management from the sea, will the measure cover coast protection in wider forms than those the Minister stated? It would be helpful if he expanded on amendment 67: how will condition 4 on page 40 go further than what is in the Bill?

Huw Irranca-Davies: I am happy to respond to that. The Bill seeks to give clear responsibility for managing different sources of flood risk to particular bodies. The EA is to have overall responsibility for sea flooding and the amendment has been moved to ensure that that happens. To avoid unnecessary administrative costs, not all works will be subject to this requirement; as I have said, only the more significant works will be. The amendment does not remove the power of IDBs or district councilsor unitary authorities, where there is no district councilto do works that manage flooding from the sea. It does require such bodies to have consent to undertake certain works in future, as I have already explained. That is to make sure that the EA can have oversight of the totality of sea flooding works and ensure that they are joined up. In terms of coastal erosion risk management and whether this is a wider form of coastal protection: yes, it is, and it does expand it in that way.

Amendment 64 agreed to.

Amendments made: 65, in schedule 2, page 40, line 23, leave out carrying out.
66, in schedule 2, page 40, line 25, leave out paragraph (a).
67, in schedule 2, page 40, line 29, at end insert
(7A) Condition 4 is that the purpose of the work is to manage a flood risk in the authoritys area from the sea and either
(a) the work is within subsection (8)(a), (b) or (f), or
(b) the Environment Agency has consented to the work..(Huw Irranca-Davies.)

Martin Horwood: I beg to move amendment 143, in schedule 2, page 40, line 33, after structures, insert
and natural or man-made features of the environment.

To ensure that this Schedule does not slip back into treating flood risk management as the maintenance of hard defences, ignoring natural features. Other subsections refer to natural processes but not features.

Eric Martlew: With this it will be convenient to discuss amendment 144, in schedule 2, page 45, line 38, after structures, insert
and natural or man-made features of the environment.

To ensure that this Schedule does not slip back into treating flood risk management as the maintenance of hard defences, ignoring natural features. Other subsections refer to natural processes but not features.

Martin Horwood: Amendments 143 and 144 are essentially tidying-up amendments to bring schedule 2 into line with other parts of the Bill. Elsewhere in the Bill there is recognition of the importance to flood and water management of natural processes and natural features.
It has been a regular theme of mine that we need to re-emphasise that we are working with nature and not in competition with it. Proposed new section 14A(8)(e) of the Land Drainage Act 1991 mentions
maintaining or restoring natural processes.
In fact, subsection (8)(f) extends that to monitoring, investigating and surveying natural processes, but nowhere is the phrase used in schedule 1,
a natural or man-made feature of the environment.
A watercourse, a field or a dyke is not a process, but a feature, yet their maintenance, restoration or reinstatement would certainly constitute an act of flood management. It seems to be an oversight that that is not included in the schedule.

Huw Irranca-Davies: I have sympathy with the spirit and the intention of the amendment, although I could spend some time saying why it is not needed. As I believe that the hon. Gentleman is seeking clarity, rather than detain the Committee, I am happy to take this away and come back with something that will deliver the same objective.

Martin Horwood: In that case, I beg to ask leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Question proposed. That the schedule, as amended, be the Second schedule to the Bill.

Anne McIntosh: I would just like to make a brief comment if I may. The explanatory notes refer in particular to section 23 of the Land Drainage Act 1991 as it currently stands. The Governments proposed amendment therefore requires any new culvert to have consent. In my capacity as vice-president of the Association of Drainage Authorities, I beg the Minister to reconsider the provision. The Government have expressed it as proposed new subsection (1B) of section 23 of the Land Drainage Act 1991. It should either be removed, or a de minimis scale of works should be set. The Bill states:
An internal drainage board or lead local flood authority must consult the Environment Agency before carrying out work
under the relevant subsection
if the board or authority is the drainage board concerned for the purposes of this section.
In the Governments view, the measure would extend to internal drainage boards and lead local flood authorities the requirement to consult and, therefore, effectively seek consent from the EA. That relates, in particular, to wherever they wish to erect a dam, mill, weir or other construction that is likely to affect the flow of water in a watercourse or otherwise alter any such construction, erect a culvert in the ordinary watercourse or alter a culvert in a manner that is likely to affect the flow of an ordinary watercourse. That provision will apply to internal drainage boards working on ordinary watercourses within their internal drainage districts where they already have a general supervisory role, as defined under section 1(2A) of the Land Drainage Act.
The Government accept that the intention might be to avoid an internal drainage boards effectively consenting to conduct works that may be appropriate on larger-scale works such as the construction of pumping stations. Will the Minister see fit to set a minimum scale of works below which that requirement will not apply so as to remove any considerable administrative burden for both the internal drainage boards and the Environment Agency on minor works, such as access culverts?
We are all aware of the importance of keeping culverts dredged and properly maintained. I applaud the work of the IDBs in that regard. If the Minister can remove the reference to minor works and make sure that the provision covers major works, that will be tremendously helpful in applying the Bill.

Huw Irranca-Davies: I see where the hon. Lady is heading. It might be helpful if I just give some clarity. Any culverts or suchlike considered to have an impact on flood risk management would, indeed, be included. We would expect the Environment Agency to put in place simple procedures for that.
As for local authorities and consultation with the Environment Agency, we know that local authorities have a particularly wide range of interests way beyond what we are discussing now, including education, transport, social services and the whole gamut of commercial development. We are trying to ensure that flood risk management is given due accord when decisions driven by other interests are considered, to reduce the chance of a conflict of interest. There could be issues around, say, culverting watercourses when playing fields are sold on for development. The Environment Agency would be consulted and, as an independent authority, express a view as to whether the principle and detail of a proposal was suitable bearing in mind local and national flood risk strategies and guidance.
While such matters might be considered as impeding local authorities in some ways, at present the local authority has to apply to the EA for consent for the works, so the change will be a reduction in regulation. It will also reflect planning law and practice when the EA is consulted on proposals for works that affect watercourses and might indeed object to proposals on flood risk grounds.
To clarify matters further, in terms of minor works to which the hon. Lady referred, and de minimis levels of consultation, I repeat that we would expect the Environment Agency to apply the procedure sensibly and proportionately. It is not easy to make a distinction between major and minor in practice when talking about flood risk management. On setting a minimum scale in consultation, the Environment Agency could consider doing that and setting it out in guidance on the basis of a programme of worksfor example, covering a years activity. That might be one way to look at it.
I hope I have given the hon. Lady some assurance on the issues she has rightly raised.

Question put and agreed to.

Schedule 2, as amended, agreed to.

Clause 32 ordered to stand part of the Bill.

Schedule 3

Sustainable Drainage

Anne McIntosh: I beg to move amendment 149, in schedule 3, page 47, leave out lines 36 to 39 and insert
(1) In this Schedule drainage system means
(a) a structure designed to receive rainwater except
(i) a public sewer, or
(ii) a natural watercourse; and
(b) any lateral drain or sewer communicating with a drainage system..

Eric Martlew: With this it will be convenient to discuss the following: amendment 150, in schedule 3, page 48, leave out lines 4 and 5 and insert
(3) Lateral drain, sewer and public sewer have the meanings given by section 219(1) of the Water Industry Act 1991..
Amendment 18, in schedule 3, page 48, line 8, leave out paragraph 2 and insertSustainable Urban Drainage System means a drainage system which
(a) facilitates attenuation, settlement or treatment of surface water from two or more premises (whether or not together with road water), and
(b) includes one or more of the following:
(i) inlet;
(ii) outlet structures;
(iii) swales;
(iv) constructed wetlands;
(v) ponds;
(vi) filter trenches;
(vii) attenuation tanks, and
(viii) detention basins (together with any associated pipes and equipment)..
Amendment 163, in schedule 3, page 48, line 12, after the, insert natural.
New clause 12Sustainable urban drainage systems
A full definition of Sustainable Urban Drainage Systems (SUDS) is Sustainable drainage systems or sustainable (urban) drainage systems: a sequence of management practices and control structures designed to drain surface water in a more sustainable fashion than some conventional techniques (may also be referred to as SuDS)...

Anne McIntosh: These are, in our view, extremely important clarifying amendments. We wish to make it clear that any surface water drain or sewer drains into a SUDS system rather than the public sewerage system. It is important that we understand and are clear about the definitions at the outset. My understanding is that a lateral drain or sewer connects the main border of a property with the main sewer. Can the Minister clarify that my understanding is correct? I have explained it briefly, but the Minister may want to explain further. As we said previously, we are concerned that we do not know for sure what these SUDS are, where they are, who owns them, who gave approval to the SUDS, who is currently responsible for them and who is maintaining them. We will go on to discuss what the potential is for various parties if a SUDS floods, but in this instance we believe it is important to say specifically that such a structure is
designed to receive rainwater except...a public sewer, or...a natural watercourse.
I would go further in explaining amendment 149. In my view, there are two primary drainage systems. It would be helpful if the Minister could confirm whether my understanding is correct. The one common SUDS relates to a highway and takes excess water off a road, so it could be a ditch or a culvert, but it is probably connected not too far from a road. Those are probably easier to identify.
There is considerably less clarity about drainage systems relating to housing developments. For the sake of clarity, I asked the Environment Agency locallyits headquarters is in the Vale of Yorkto single out and identify some of those SUDS, which could be ponds or drains, and do not normally connect to a public sewer. The definition has implications for later amendments. The agency helpfully set out a number of SUDS in my own area. One is Rawcliffe ponds, which I imagine was dealt with during the construction of a major housing development in the York area of the Vale of York. The local environment agency described SUDS, and stated:
Traditional drainage is designed to move rainwater as rapidly as possible from the point at which it has fallen to a discharge point, either to a watercourse or soakaway..
It went on to state that
run-off from hard paving and roofing can increase the risk of flooding downstream, as well as causing sudden rises in water levels and flow rates.
It would be helpful to understand where the surface water drains off, and whether the Minister would accept that it falls within the context of the definition.
Amendment 150 would mean that lateral drain, sewer and public sewer have the meanings that are set out in the relevant section of the Water Industry Act 1991. For the sake of clarity, I hope that the Minister will confirm that is acceptable. Amendment 18 defines a Sustainable Urban Drainage System as a drainage system as currently recognised in Scots law. I would ask the Minister to give a good reason if he believes that it would not be appropriate to accept a definition that already exists in one part of the United Kingdom. I hope he will find that definition even more encompassing than the one set out in amendment 149.
New clause 12 states:
A full definition of Sustainable Urban Drainage Systems
is
a sequence of management practices and control structures designed to drain surface water in a more sustainable fashion than some conventional techniques (may also be referred to as SuDS)..
The new clause and the amendments are meant in a helpful way to try and focus, if possible, on exactly what the Minister and the Committee understand by the definition of sustainable urban drainage.

Martin Horwood: I echo the hon. Ladys last commenta desire for clarity in this section is extremely important. I would be interested to hear the Ministers remarks, but amendments 149 and 150 seem to add clarity and definition to some of the provisions in the Bill, and therefore I suspect that they are welcome. However, we seem to be running into a little difficulty. As far as I understand, what are commonly known as SUDSsustainable urban drainage systemsare a specific category of site-specific drainage constructions designed to ameliorate urban flooding and capture water in a localised area. We seem to be drifting into slight confusion between that and sustainable drainage in general, which is what the clause seems to address.
I have particular concerns about amendment 18, as it seems to add a very specific but actually quite inclusive definition of sustainable urban drainage systems, that in its deletion element would remove any broader definition of sustainable drainage. In semantic terms, I am not sure what that means for sustainable drainage that is not urban. In one sense it seems to be excluded, but the list includes things that might not be urban, such as constructed wetlands, which we have in an urban area in Cheltenham as part of a flood relief system at Coxs meadow, which used to be a meadow and is now a more spectacular feature since the Environment Agency got to work on it.
I echo the closing words of the hon. Member for Vale of York: we need some clarity. Are we talking about broader definitions of sustainable drainage or the specific mechanisms and constructions that are more commonly known as SUDS?
Amendment 163 would simply insert the word natural into the phrase
protecting and improving the environment
in the definition of sustainable drainage. Of course, that would be removed if amendment 18 were accepted. This point harks back to our discussion on the meaning of sustainability. When I read the schedule, I detected a possible loophole because it could allow the management of rainwater in a way that a developer argues improves the environment, meaning the built environment. That means that whatever the developer proposed could be sustainable drainage under the terms of the Bill.
I am keen to reinforce the Bills environmental credentials by ensuring that a developers plan that would damage biodiversity, or compromise flood or water management on a more natural and environmentally friendly basis would not be allowed under the definition of sustainable drainage. At the moment, we have the slightly loose terminology of
protecting and improving the environment,
without any specific reference to the natural environment. I tabled the amendment because it is important to recognise the natural environment.

Huw Irranca-Davies: I shall begin by dealing with the trickiest question, which is what a lateral drain is. I will do my best. My understanding is that a sewer serves more than one property, a drain serves one property and a lateral is the part of a drain that extends beyond or outside the boundary of a propertyI wish I had a flip chart. When there is a house and a boundary fence, the drain that goes beyond the boundary fence is the lateral that feeds into the sewer. Does that help?

Anne McIntosh: Obviously not all hon. Members can see this, but my understanding is

Eric Martlew: I am not sure we can use visual aids in a Public Bill Committee. The hon. Lady will have to explain it.

Anne McIntosh: My understanding is that there is a building or property and that there is a sewer that connects the sewage and waste water from that building to the main sewer. My understanding is that the lateral drain runs from the boundary of the property to the sewer. It is quite important that we get that on the record so it is clear that we know what we are talking about for these provisions.

Huw Irranca-Davies: Indeed. I confirm that the hon. Ladys description was very good. Even without the diagram, it worked very effectively.
Let us move on to the trickier question of what count as SUDS under our definition in the Bill, as opposed to the Scottish interpretation, which I will come to in a moment. The EAs description is not a bad one. In its view, SUDS are what slow down the flow and reduce the volume of flow to sewers, and they improve water quality and amenity. SUDS, of course, protect and improve the natural environment, but they can also improve the developed one. There are a variety of SUDS. They are not limited simply to hard engineering. The Scottish example and highly urbanised examples include highly engineered solutions, as well as more naturally landscaped solutions.

Anne McIntosh: Will the Minister give way?

Huw Irranca-Davies: I will just expand on this a little.
SUDS could be quite attractive features that enhance the built environment through public amenity. They can provide functional spaces such as roads, car parks and parks that add to the drainage system.
The Bill provides for regulations to define SUDS further and that is the important point. There is a myriad of designs for sustainable drainage systemsI have seen many of themfor all sorts of geographical and topographical areas. These designs are constantly evolving in real time with the advancement of technology and with experience. This week, I wrote to Committee members with additional information on SUDS; I do not know whether they have received that. Regulations, accompanied by national standards for SUDS, will enable us to retain flexibility in defining what a SUDS is. That will ensure that we have drainage systems designed to help reduce localised flash floods flooding downstream and to slow down the rate at which areas begin to flood, as well as improving water quality and potentially enhancing the environment.

Martin Horwood: I would like to challenge the Minister on one point. He talked about SUDS being applicable to a variety of environments, and yet the U stands for urban.

Huw Irranca-Davies: No.

Martin Horwood: Well, okay. Does the U stand for urban?

Eric Martlew: Minister, can you put that on the record?

Huw Irranca-Davies: Yes, indeed. It is good to get clarity on this. Our interpretation is that these are not sustainable urban drainage systems. They are sustainable drainage systems and will have applications in urban areas, rural areas and everything in between. We are not going down the road of saying that this is either a hard technological solution or only to be used in inner cities; it has a much wider application. That is why it is difficult to find one definition that says, This is what it is.
A SUDS system is not exactly a sustainable urban drainage systemI am sorry, maybe our terminology is confusing. Our SUDS is the SU from sustainable with DS. It is a sustainable drainage system.

Anne McIntosh: This reverts to what the hon. Gentleman said earlier; I wanted him to complete his sentence. If I can be clear in my own mind, I think there are two different sets of systems and two sets of consequences that flow from them. The importance of understanding this correctly relates to ending automatic connection, which we come on to consider later.
We are all right, but we are all wrong to a certain extent. There are sustainable urban drainage systems that have a particular function in connection to taking water in urban areas where there are major housing developments. Earlier, the Minister said very specifically that he only wants to stop the automatic right to connect from these to the waste water infrastructure of the water companies. I am clear in my own mindand I hope I can carry the Committee with methat SUDS maintains a very specific legal meaning within the context of the Bill. There are other drainage systems

Martin Horwood: On a point of order, Mr. Martlew, I think it might be extremely helpful if we stopped talking about suds and started talking about either SDSs, or SUDSs.

Eric Martlew: That is a point of clarification, not a point of order.

Anne McIntosh: I think a SUD has a u in it and an SDS does not have the u. I do not know how clear I can make it. The point is that in rural areas, there areand the hon. Member for Cheltenham referred to it himself

Eric Martlew: Order. We are on an intervention at the present time.

Anne McIntosh: I was just starting to enjoy myself. I want to be clear and press the Minister on this. SUDS, as opposed to SDSs, have a specific legal requirement.

Eric Martlew: You will have the opportunity to widen up the debate on this amendment.

Huw Irranca-Davies: SUDS or sustainable urban drainage systems are by their definitionand within the Scottish Billmore restricted in what they apply to. We do not want that restriction. I will come to the Scottish issue in a moment. For clarity, when I refer to SUDS I shall do as we have always done in respect of the Bill. Perhaps we should have called them SDSs, or come up with another name. When I refer to SUDS I mean our sustainable drainage systems. If I refer to the Scottish model, I will clarify matters by saying that I am referring to the sustainable urban drainage system.
Amendment 149 would extend the meaning of the term drainage system as outlined in paragraph (1)(a) to the schedule to include
any lateral drain or sewer communicating with a drainage system.
I understand where the hon. Member for Vale of York is coming from, but amendments 149 and 150 are not necessary. Among other things, paragraph 16(5) to schedule 3 already provides for the Minister to determine what the SUDs approving body should approve and adopt, by defining in regulations the term sustainable drainage system. The regulations will therefore define whether and when it is appropriate for a lateral drain or a sewer to be adopted by the SUDS approving body. A change to primary legislation is therefore not required.
Moreover, the development of the regulations will include public consultation. I know that I am being criticised for my love of consultation, but there is not as much as it sounds because some consultations are tied together. The consultation will ensure that the regulations are well considered and appropriate. If we accepted amendment 149, the opportunity for consultation would be missed.
I return to the question of whether lateral drains and sewers should be included in the definition of sustainable drainage systems. Paragraph 16(5) to schedule 3 gives the Minister the power to define them by regulation, and they will be considered if and when a lateral drain or sewer is subject to approval by the SUDS approving body.
I turn to paragraph 7(4) of schedule 3, which relates to the amendments. It provides for the Minister to set out by order what requires approval, and for exemptions to the need for approval when appropriate. The question of whether water courses or engineered channels require approval will therefore be considered under those regulations. It is unlikely that they would, but we would expect IDBs to work with the lead local authorities and the SAB, or the SUDS approving body. Furthermore, approval is required for a SUDSI refer to our SUDS; otherwise I shall refer to the sustainable urban drainage systembuilt to take water from a new development or other construction work.
Without approval for the SUDS, developers cannot build a development, so IDBs are not developers in that sense. They are not building drainage systems in order to get consent for a specific development. Hence, it will not be necessary for them to seek consent. As I said, the regulations will be subject to a full consultation.
Amendment 18 and new clause 12 both seek to insert additional definitions of sustainable urban drainage systems. Amendment 18 aims to replicate the definitions in the Water Environment and Water Services (Scotland) Act 2003. Many good things come out of Scotlandnot least whisky, which is almost as good as the Penderyn whisky from my part of the world.
Arrangements in Scotland are different, not least because Scottish Water is publicly owned, unlike in England, where the companies are privately owned and therefore have a commercial interest. In Scotland, a sustainable urban drainage system must meet build standards similar to what we propose in our national standards, before it is adopted by Scottish Water. Interestingly, however, that is by agreement. Approval of SUDS and the adoption arrangements are often held up because the developer and Scottish Water simply cannot agree.
In any case, Scottish Water is not responsible for adopting all SUDS. Those in roads are adopted by local authorities. SUDS in trunk roads are adopted by the Scottish Government. We believe that it is important, and in line with Pitt, to have clear and consistent arrangements. We developed our SUDS policies after two public consultations, as well as learning from experience in Scotland and looking at the wide impact of the 2007 floods in rural and urban areas. The Scottish Act also deals with the sewerage system as a whole. It deals with SUDS as well public sewers and public sewage treatment works, so there are some differences.
However, the amendments are not necessary, as the term sustainable drainage is already defined in the Bill under schedule 3 paragraph 2. It does not include the term urban because, as we saw in the 2007 floods, surface water flooding is both an urban and a rural issue,and SUDS can be used in both rural and urban settings.
The Scottish Act was passed in 2003. Since then, we have had the benefit of experience in understanding the complexities of surface water management and the downstream impacts of building developments in both rural and urban areas. Scotland has seen SUDS used in both rural and urban developments and so it feels right that our new definitionnow widely used by practitionersreflects what actually happens on the ground and will be delivered going forward.
Furthermore, paragraph 17 also defines single property SUDS as those that provide drainage only for a single property, giving a wider definition of SUDS than what is proposed in amendment 18the Scottish definition. The amendments are therefore more limiting than what is already contained in the Bill. I commend the intention, but it is not necessary to make the change to the definition in this case.
The Bill also makes provision for SUDSour SUDSto be defined further in regulations in schedule 3, paragraph 16(5). I wrote to members of the Committee this week and I hope that they have seen the letter; if not, it will be in the mailbox. I have a copy here if anybody wants to see it later on. SUDS national standards, referred to in schedule 3, paragraph 5, which will be published after consultationalthough we have some thoughts on it alreadywill also set out different types of SUDS techniques and their use. Defining sustainable drainage systems in regulations and then setting out the specific detail of different types of SUDS features in the national standards, rather than on primary legislation, also allows for flexibility to add new SUDS designsand they are constantly coming forwardand new SUDS approaches as they are developed.
The hon. Members for Cheltenham and for Brecon and Radnorshire tabled amendment 163,inserting the word natural to paragraph 2(c) of schedule 3. As a result, the paragraph would state that one of the intentions of managing rainwater through sustainable drainage was
protecting and improving the natural environment.
I understand the spirit in which that is put, but curiously the amendment could actually prove extremely limiting. In fact, it does not reflect the wider environmental benefits delivered by SUDS in both the natural and the developed environment. By inserting reference to the natural environment, the amendment suggests that SUDS would offer protection onlyto natural environments that have not been interfered with through development. We do not want that to happen.
However, SUDS are extremely effective, as we have seen from examples that are already there, in protecting and improving the man-made environment. That is particularly true in urban areas, where the clever use of SUDS delivers drainage systems more attractive and effective than conventional drainage, as well as the additional benefits of improving water quality and reducing flooding risk. They can include natural SUDS solutions, such as ponds or reed beds, as well as hard landscaping such as artificial channels, which all improve the visual and physicalquality of the urban environment. I was looking at some amazing pictures today of SUDS development techniques. They are multifaceted, varied and many of them are very attractive. They can be dual-functional as well. SUDS can be in roads, car parks and playing fields that add value to the urban environment and benefit the communities.
The intention of the amendment may have been to emphasise the considerable benefits of using SUDS techniques that mimic natural features. However, given the ability of SUDS to protect and improve the man-made environment, as well as the natural environment, an amendment that suggested that SUDS should only protect and improve the natural environment may be limiting. I therefore ask the hon. Members to withdraw their amendments.

Ordered, That the debate be now adjourned.(David Wright.)

Adjourned till Thursday 21 January at Nine oclock.